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BENUE STATE UNIVERSITY v. MOGAJI (2022)

BENUE STATE UNIVERSITY v. MOGAJI

(2022)LCN/16023(CA) 

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/MK/46A/2021

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

BENUE STATE UNIVERSITY APPELANT(S)

And

DR. ANDREW ABIODUN MOGAJI RESPONDENT(S)

 

RATIO:

A JUDGE IS AT LIBERTY TO HAVE RECOURSE TO ANY PROVISION OF THE LAW IN THE COURSE OF WRITING HIS JUDGMENT

”In the case of Bakare v. Nigerian Railway Corporation (supra), Mukhtar, JSC, at pages 659-660, opined inter alia, as follows: A Judge in the course of writing his judgment is at liberty to have recourse to any provision of the law that is relevant to the subject matter of the case in controversy in order to completely give the judgment the attention it deserves, to do justice to it, and to avoid a miscarriage of justice. See Onuoha v. State (1988) 3 NWLR (Pt. 83) page 460.” Per OGBUAGU, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A. 

ANY INFERENCES MADE BY THE JUDGE IN A STATED FACTS IN A CASE BY THE NATURE OF HIS ADJUDICATORY FUNCTIONS

In the case of AKEREDOLU V ABRAHAM & ORS (2018) LPELR-44067(SC), the instances when a Court will be accused of raising an issue suo motu was explained thus:
“A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it.
In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” YARGATA BYENCHIT NIMPAR, J.C.A. 

IT IS A RULE OF PLEADING THAT A PARTY MUST PLEAD MATERIAL FACTS ONLY AND NOT LAW

There are several decided cases on this issue. However, all pleadings relate to facts and not law, parties do not plead law but facts, see ANYANWU V. MBARA & ANOR (1992) LPELR-516(SC) and ABACHA & ORS V. FAWEHINMI (2000) LPELR-14 (SC) wherein the Per IGUH, J.S.C had this to say:
“…it is a principal rule of pleading that a party must plead material facts only and not law. It is thus not only unnecessary but contrary to the rule of pleadings to plead law, statutes, or Sections thereof before reliance can be placed on them. If a party’s case depends on a statute, all he needs do is fully to plead material facts necessary to bring his case within that statute. See Read v. Brown 22 Q.B.D. 128; Re: Vandervell’s Trusts. (No. 2) (1974) 3 All E.R. 205 at 213 (C.A.); Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 398.”  YARGATA BYENCHIT NIMPAR, J.C.A. 

A COURT IS DUTY BOUND TO CONFINE ITS DECISION AND RAISING AN ISSUE SUO MOTO ON ISSUES RAISED BY THE PARTIES

Generally speaking, a Court is duty bound to confine its decisions to issues raised by the parties as the Court has no power to formulate cases for the parties or to speculate on the evidence of parties otherwise it might find itself entangled in the thicket of the dispute and from which it may be difficult to extricate itself. This notwithstanding, under our adjectival laws, a Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising an issue suo motu if the issue, just as in the instant Appeal was raised by both parties or by any of the parties in the proceedings. In the case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS (2006) LPELR – 1140(SC), the Supreme Court per Tobi, JSC (of blessed memory) had this to say on the subject:
“A Judge has the right in our adjectival law to use particular words and phrases which, in his opinion are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issues suo motu. A Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation…it is the position of the law that an Appellate Court is bound by the record of Appeal. It cannot go outside the record and raise issue suo motu. If the Court raises an issue suo motu parties must be invited to address the Court on the issue. See NWIGWE vs. NWUDE (1999) 11 NWLR (PT. 626) 314; USMAN vs. GARKE (1999) 1 NWLR (PT. 587) 466; OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT. 684) 298; ARAKA vs. EJEAGWU (2000) 15 NWLR (PT. 692) 684; ALLI vs. ALESINLOYE (2000) 6 NWLR (PT. 660) 177.” YARGATA BYENCHIT NIMPAR, J.C.A. 

In Awoniyi v. Reg Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, this Court re-stated the purpose of a consequential order “The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject-matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour.”Per MUHAMMAD, J.S.C. . YARGATA BYENCHIT NIMPAR, J.C.A.

IT IS NOT THE DUTY OF THE COURT OF APPEAL TO INTERFER WITH THE SPECIFIC FINDINGS OF FACT BY THE TRIAL COURT SUPPORTED BY EVIDENCE

The most fundamental factor to consider in this situation is the fact that the reliefs were granted upon clear findings made based on credible and cogent evidence before the Court and once the trial Court makes findings supported by evidence, the Appellate Court will not interfere, see the case of IRIRI & ORS V. ERHURHOBARA & ANOR (1991) LPELR-1536(SC) wherein the apex Court held thus:
”…Where the trial Court has made specific findings of fact supported by the evidence, it is not the duty of the Court of Appeal to interfere with such findings once the Court of Appeal is satisfied that the findings were based on the evidence. See the case of Chief Ebba v. Chief Ogodo & Anor. (1984) 1 S.C.N.L.R. 372.” Per OLATAWURA, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A. 

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the National Industrial Court sitting in Makurdi and delivered by HON. JUSTICE S. H. DANJIDDA, J on the 04th February, 2020 wherein the lower Court entered judgment in favour of the Respondent by nullifying the dismissal of the Respondent by the Appellant and it ordered the reinstatement of the Respondent into the service of the Appellant. The Appellant dissatisfied with the decision, filed a Notice of Appeal on the 17th day of February, 2021 setting out 6 grounds of Appeal.

​Facts leading to this appeal are straight forward and amenable to brief summary. The Respondent was Claimant at the trial Court, National Industrial Court of Nigeria sitting in Makurdi before which he challenged his dismissal by the Appellant primarily on the grounds that he was not guilty of the misconduct for which he was dismissed or that he had previously been disciplined for the alleged misconduct and the subsequent dismissal was therefore double jeopardy. Issues were joined by the parties on the claim of the Respondent before the lower Court, the matter proceeded to trial with the Respondent testified for himself and tendered Exhibits AAM-01, AAM-02 and AAM-03, AAM-04 to AAM32, AAM32A1-AAM32A29, AAM33 to AAM39 while the Appellant called 2 witnesses and tendered Exhibit SMU1A. After due hearing, the learned trial Judge nullified the dismissal of the Respondent on the basis that the Appellant condoned or waived the misconduct alleged against the Respondent. The Appellant’s contention is that condonation was never part of the Respondent’s case before the lower Court. The Appellant aggrieved with the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the Appeal. The Appellant’s brief settled by S.D. SWEM, ESQ., is dated 13th day of July, 2021 filed on the same day but deemed 14th July, 2021. The Appellant distilled 3 issues for determination as follows:
1. Whether the learned trial Judge was right in nullifying the dismissal of the Respondent and ordering his reinstatement in the service of the Appellant on the basis that the Appellant had waived and condoned the issue of concealment of Respondent’s employment history, which gave rise to the Respondent’s dismissal. (Distilled from grounds 1, 2, 4 and 6 of the Ground of Appeal).
2. Whether the learned trial Judge was right in nullifying the dismissal of the Respondent and ordering his reinstatement in the service of the Appellant after holding that the Respondent was guilty of the allegation of concealment of employment history for which he was dismissed by the Appellant and that the Respondent was given adequate opportunity to defend himself of the said allegation before his dismissal. (Distilled from ground 3).
3. Whether the learned trial Judge did not err in law when he discountenanced the declaratory reliefs sought by the Respondent in paragraph 40 (1-9) of the Respondent’s amended statement of claim, but nevertheless proceeded to grant the consequential reliefs sought by the Respondent in paragraph 40 (10-11) of his amended statement of claim. (Distilled from ground 5).

The Respondent’s brief settled by OCHA P. ULEGEDE, ESQ. dated 11th October, 2021 filed on the same day but deemed on the 25th October, 2021. The Respondent adopted issues 1 and 2 raised by the Appellant but formulated a new issue 3 which states as follows:
3. Whether the reliefs sought by the Respondent in paragraph 40 (10) and (11) of the Amended Statement of Fact and partly granted by the learned trial Judge was not an ancillary relief and rightly granted by the learned trial Court? (Distilled from ground 5).

Thereafter the Appellant filed a reply brief dated 1stday of December, 2021 and deemed on the 2nd December, 2021.

APPELLANTS SUBMISSION
ISSUE ONE
The Appellant submits that the National Industrial Court of Nigeria erred in law when he nullified the dismissal of the Respondent and ordered the reinstatement of the Respondent into the service of the Appellant. The Appellant reproduced the two main grounds the Respondent relied on to challenge his dismissal as contained in the Respondent’s Amended Statement of Facts in support of the claim as set out in pages 287 – 296 of the Records and also reproduced the reliefs sought by the Respondent as borne out in pages 293 – 294 of the Record to submit that it was never the case of the Respondent that he was guilty of the allegation of concealment of the employment history leveled against him and which the Appellant ignored and overlooked same so he could not be subsequently punished for the same allegations; rather, the Respondent’s case was that he was not guilty of the allegation of concealment of past employment history, and even if he were, he had already been punished for same so he could not be punished twice for the same misconduct.

The Appellant argued that the trial Court relied on the defence of waiver and condonation to nullify the dismissal of the Respondent and ordered for his reinstatement into the service of the Appellant which is quite different from the defence of double jeopardy pleaded and relied upon by the Respondent before the lower Court. Therefore it was wrong for the trial Judge to go outside the claim of the Respondent to make a different case for the Respondent. The Appellant relied on OGUNBIYI & ORS V. BALOGUN & ORS (2017) LPELR-42714 (CA), OBANYE V. MBAMALU (2012) LPELR-9475(CA), KAZALMA & ANOR V. GADDI & ANOR (2019) LPELR-47085 (CA) and STANBIC IBTC BANK V. LONGTERM GLOBAL CAPITAL LTD & ORS (2018) LPELR-44053(CA) to submits that the trial Judge was bound to confine himself to the grounds cited by the Respondent as the basis for the challenge of his dismissal by the Appellant. The Appellant further submits that by making a case for the Respondent different from that made by the Respondent, the learned trial Judge stepped into the arena of trial and clearly took sides with the Respondent thereby violating the Appellant’s constitutional right to fair hearing as enshrined in Section 36(6) of the 1999 Constitution as held in ACCESS BANK V. K.C. INTL LTD (2018) LPELR-43668(CA).

Citing OLORUNDAMI V. IJUMU LOCAL GOVT (2018) LPELR-45857 (CA), the Appellant contended that the trial Judge erred in law by failing or neglecting to invite parties to first address him on the issue of waiver or condonation of the allegations against the Respondent by the Appellant before making a pronouncement. It is also the contention of the Appellant that it was not in the power of the trial Court to take over the case of the Respondent and conduct it for him by raising the defence not put forward by the Respondent and by that action the trial Judge gave up his position as an arbiter in the case placed before him and took the position of an advocate. The Appellant referred the Court to S.O. ODULAJA BLACK AND WHITE HOTEL LTD V. WEMA BANK LTD & ORS (2014) LPELR-23816(CA) and SCOA (NIG) PLC V. TAAN & ORS (2018) LPELR-44545(CA).

The Appellant submits that by the tenor of Exhibit AAM-019, the Appellant did not foreclose the allegation against the Respondent by mere fact of reinstating the Respondent neither did she give up her right to discipline the Respondent if such misconduct would later be established and it was on this basis that when the allegation of misconduct was later on sufficiently established against the Respondent in December, 2017, the Appellant then did the needful by applying the appropriate sanction against the Respondent, therefore, the Appellant was not guilty of condonation or waiver of the allegation of concealment of employment history by the Respondent.
The Appellant urged the Court to resolve issue 1 in favour of the Appellant.

ISSUE TWO
In arguing this issue, the Appellant submitted that the trial Judge erred in law when after finding that the Respondent was guilty of the misconduct of concealment of employment history, the trial Court turned around and nullified the dismissal of the Respondent by the Appellant which was based on the same allegations of concealment of past employment history. The Appellant further submits that by Exhibit AAM 016 the Respondent was dismissed from service of the Appellant on the allegation of concealment of past employment history and Exhibit AAM38 is the table of sanctions for various acts which the Appellant had proscribed as misconduct and the sanction for concealment is dismissal, therefore, having found the Respondent guilty of the allegation of concealment of employment history and having also established that due process was followed by the Appellant in the determination of the allegations against the Respondent, the trial Court was wrong to turn around to nullify the dismissal of the Respondent.

Relying on NIMASA V. ODEY (2013) LPELR-21402(CA) the Appellant argued that the law is trite that an employer has unfettered rights to discipline an employee once due process and appropriate procedure is followed and all that is required by the Appellant was to ensure that the rights of the Respondent were not infringed or violated in the disciplinary process employed by the Appellant and where the lower Court found that due process was followed by the Appellant in the determination of the allegation against the Respondent, the lower Court ought to have upheld the dismissal of the Respondent by the Appellant.

It was the submission of the Appellant that by the scope of the case presented by the Respondent before the lower Court, there was no justification for the lower Court to have nullified the dismissal of the Respondent by the Appellant because the lower Court dismissed all the grounds upon which the Respondent challenged his dismissal before the Court, what ought to have followed in the circumstances therefore was an affirmation of the Respondent’s dismissal and a dismissal of the Respondent’s case for lacking in merit. The Appellant urged the Court to resolve issue 2 in favour of the Appellant.

ISSUE THREE
The Appellant submitted that the trial Judge committed a grave error in law, when he discountenanced the declaratory reliefs sought by the Respondent but proceeded to grant consequential reliefs sought by the Respondent. The Appellant reproduced the 9 declaratory reliefs sought by the Respondent at the trial Court and submitted that the act of the trial Judge was not supported by law and the law is now well settled that an ancillary claim cannot stand in the event of a collapse of the main claim. The Appellant referred the Court to the cases of FAFUNWA V. BELLVIEW TRAVELS LTD (2013) LPELR-20800 (CA) and NSUGBE V. OKOBI & ANOR (2014) LPELR-24481 (CA). Continuing, the Appellant submits that having discountenanced the 9 declaratory reliefs sought by the Respondent, the trial Court ought to dismiss the consequential reliefs which were based on the declaratory reliefs. The Appellant urged the Court to so hold and to resolve issue 3 also in favour of the Appellant.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent on its part submits that the trial Judge was right when he nullified the dismissal of the Respondent by the Appellant and ordered the Respondent’s reinstatement on the ground that the Appellant had waived and condoned the issue of the concealment of the Respondent’s employment history in the circumstances of the case. According to the Respondent, by a letter dated 15th December, 2017, he was dismissed by the Appellant on the grounds of concealment of employment history. The Respondent reproduced paragraph 37 (e) to (g) of the Appellant’s Amended Statement of Defence to submit that it is based on these facts that the trial Judge held that the Appellant having waived and condoned the issue of concealment of employment records cannot dismiss the Respondent on the ground of this infraction.

​It is the argument of the Respondent that he did not conceal his employment history as he made full disclosure to Professor J. A. Shindi who negotiated with him on behalf of the Appellant. The Respondent reproduced paragraph 26 (g) and (h) of the Appellant’s Amended Statement of Defence to submit that the Appellant became aware of the alleged concealment of employment history in July, 2010 and terminated the Respondent’s employment in October, 2010, subsequently, the Respondent made a passionate appeal to the Appellant and gave full record of his employment history with the University of Lagos and the Respondent rendered quality and satisfactory service to the Appellant warranting his promotion to the rank of Associate Professor in 2014 only for the Appellant to turn around in 2017 simply because the Respondent was demanding for his promotion to the rank of full professorship to dismiss him on the ground of concealment of employment history.

The Respondent defined waiver according to the Black’s Law Dictionary (Fifth Edition) P. 1417 and the case of AUTO IMPORT EXPORT V. ADEBAYO (2006) ALL FWLR (PT. 296) 912 and submitted that the Appellant upon becoming aware of the infraction of the condition of service, dismissed the Respondent and subsequently reinstated and even promoted him, if this act of the Appellant is not tantamount to waiver and condonation then what will? The Respondent relied on ASAKE V. NIGERIAN ARMY COUNCIL (2007) ALL FWLR (PT. 396) 737.

​Continuing, the Respondent submitted that the Appellant argued that the Appellant never made a case of waiver and condonation but the trial Court raised it suo motu, without calling on parties to address the Court, however, the issue of waiver and condonation is clearly founded in the pleadings and evidence of the parties on record and the trial Court did not manufacture it, secondly, the distinction between waiver, condonation and double jeopardy that the Appellant attempts to make is one of mere semantics. The Appellant submits that the cases of OGUNBIYI & ORS V. BALOGUN & ORS (2017) LPELR-42714 (CA), OBANYE V. MBAMALU (2012) LPELR-9475 (CA), KAZALMA & ANOR V. GADDI & ANOR (2019) LPELR-47085(CA), STANBIC IBTC BANK V. LONGTERM GLOBAL CAPITAL LTD & ORS (2018) LPELR-44053(CA), ACCESS BANK V. K.C. INTL LTD (2018) LPELR-43668(CA) and OLORUNDAMI V. IJUMU LOCAL GOVT (2018) LPELR-45857(CA) relied on by the Appellant are inapplicable and irrelevant to the present appeal.

Furthermore, the Respondent submits that the trial Court was right to hold that the dismissal of the Respondent was illegal in view of the waiver and condonation of the issue of concealment of employment history by the Respondent and the Respondent urge the Court to dismiss the appeal on this ground.

ISSUE TWO
The Respondent submits that even though he does not concede to the submission that the trial Judge was right in finding that the Respondent was guilty of the allegation of concealment of employment history and was given adequate opportunity to defend himself before the dismissal, however, the trial Judge was right in nullifying the dismissal of the Respondent because the trial Judge found as a fact that after the disclosure of Respondent’s employment history by the University of Lagos and termination of the Respondent, the Appellant reinstated and even promoted the Respondent and thus have waived their right to subsequently punish him as same have been condoned. The Respondent relied on EKUNDA V. UNIVERSITY OF IBADAN (2000) 12 NWLR (PT. 681) 221. Continuing, the Appellant submits that a combined reading of Exhibit AAM 024 and AAM 040 therefore shows that the Appellant terminated the Respondent’s appointment on the issue but had waived same thus inequitable to again dig up the issue and punish the Respondent when by the conduct of the Appellant, the issue of concealment of past employment records/history has been put to rest. The Respondent cited DIAMOND BANK LTD V. UGOCHUKWU (2007) ALL FWLR (PT. 384) 290.

​Furthermore, the Respondent argued that the Appellant contended that an employer has unfettered right to discipline an erring employee, however, the right is not absolute but subject to provisions and operation of the law such as in the instant appeal where the Appellant by his conduct has already waived her right to discipline. The Respondent urged the Court to so hold and dismiss the appeal.

ISSUE THREE
In arguing this issue, Respondent reproduced reliefs 10 and 11 sought by the Respondent before the trial Court to submit that reliefs 10 and 11 cannot be said to be ancillary reliefs. Relying on AYUBA ZAFI V. IRIMIYA MANZO (2021) LPELR-55148 (CA), the Respondent defines ancillary relief as a subordinate legal proceeding that is not the primary dispute but which aids the outcome of the main action. The Respondent argued that reliefs 10 and 11 sought by the Respondent were clear and unambiguous and equally so granted in clear and unambiguous terms, therefore, the Respondent urge the Court not to interfere with the order as held in ADO IBRAHIM & CO. LTD & ANOR V. ELDESTEIN (NIG) LTD (2002) 1 NWLR (PT. 747) 50. Furthermore, the Respondent argued that the reliefs granted by the trial Court were based on the findings of the trial Court which were premised on the strong, credible and compelling evidence before the Court and which flows directly from the facts before the Court. The Appellant cited JEGEDE V. OLESHIN (2016) ALL FWLR (PT. 847) 555 and AWOYOOLU V. ARO (2006) ALL FWLR (PT. 308) 1319. The Respondent urged the Court to resolve this issue against the Appellant.

THE APPELLANT’S REPLY BRIEF
The Appellant submits that a case of waiver or condonation of his alleged misconduct before the lower Court and the case placed by the Respondent before the lower Court are two different cases. The Appellant argued that under the adjectival judicial procedure, the lower Court is not empowered to wander outside the case of the Respondent and make another case for him even if the facts proved before the trial Court showed other grounds upon which the Court could stand on to give judgment to the Respondent. Still on the same score, the Appellant submits that the effort of the Respondent to explain the purport condonation and to demonstrate that same existed from the facts set out before the lower Court is of no moment in the resolution of this appeal and should be discountenanced, as arguments of parties cannot take the place of pleadings and evidence.

​In response to the Respondent’s argument that with the reinstatement of Respondent by Appellant, this appeal has become an academic exercise, the Appellant submits that the issues relating to the reinstatement of the Respondent by the Appellant do not fall for determination in this appeal. The Appellant urged the Court to discountenance the arguments and submission of the Respondent in the Respondent’s Brief of argument and to allow the Appeal in the interest of justice.

RESOLUTION OF THE APPEAL
Upon a careful consideration of the Notice of Appeal which is the initiating process, the Record of Appeal reflecting the processes filed and proceedings of the lower Court, the Briefs of the respective Counsel in this appeal wherein parties distilled issues for determination in this appeal, the Court shall adopt the 3 issues donated by the Appellant for determination because the issues represent its grouse with the judgment, doing so would enable the Court resolve all issues and settle the appeal.

ISSUE ONE
Whether the learned trial Judge was right in nullifying the dismissal of the Respondent and ordering his reinstatement in the service of the Appellant on the basis that the Appellant had waived and condoned the issue of concealment of Respondent’s employment history, which gave rise to the Respondent’s dismissal.

The Respondent was employed by the Appellant and the relationship became sour on the claim that he concealed employment history and he was dismissed thus the action at the lower Court. The Appellant identified two main planks of the case of the Respondent and listed as:
i. That he was not guilty of the allegations of concealment of employment history leveled against him by the Appellant which resulted in his dismissal; and
ii. That even if he were guilty of the said allegations by the termination of his appointment on the 25/10/2010 but later reinstated on 20/06/2011 and thus the subsequent dismissal on the same allegation amounted to double jeopardy.

The Appellant contends strongly that the Respondent did not make out a case of condonation or waiver to warrant the lower Court’s judgment in his favour. What is condonation? The word is generally used in criminal or matrimonial causes, the apex Court gave a definition or description of the word in the case of PML (NIG) LTF V. FRN (2017) LPELR-43480(SC) as follows:
“Condonation” is “the voluntary overlooking or pardon of on offence” – see Merriam-webster.com, wherein condonation is also defined as “implied pardon of an offence by treating the offender as if it had not been committed”. The difference between the two, therefore, is that while the compounding of an offence does not mean that the offence had not been committed, by condoning the offence, the offender is treated as if the offence had not been committed in the first place. Condonation is, principally, used in canon law and military law. In canon law, condonation is a defence to an action for divorce that the “innocent spouse having forgiven the adulterous spouse cannot now take proceedings” – see legal_dictionary.thefreedictionary.com. In Nigeria, Section 26 of the Matrimonial Causes Act provides that- Except where Section 16(1) of this Act applies, a decree of dissolution of marriage shall not be made if the petitioner has condoned or connived at the conduct constituting the facts on which the petition is based. In his book, Nigerian Family law, Professor I. Sagay expounded thus- In law, there is condonation when one spouse, with full knowledge of the matrimonial wrong committed by the other spouse, reinstates the offending spouse to his or her earlier marital position, with the intention that the spouse whose wrong is so condoned does not henceforth, commit any further matrimonial offence. The principle of “condonation” in military law has been traced back to 1832 in the Memorandum on Corporal Punishment issued by the Duke of Wellington on 4/3/1832 (see Wikipedia), wherein he stated- The performance of a duty of honour or of trust, after the knowledge of an offence, committed by a soldier, ought to convey a pardon for the offence. In Nigeria, Section 171 (1) (c) of the Armed Forces Act provides that- Where a person subject to service law under this Act (c) Has had an offence condoned by his commanding officer, he shall not be liable in respect of that offence to be tried by a Court martial or to have the case dealt with summarily under this Act- In Nigerian Army V. Aminun-Kano (supra), cited by the Appellant, the Respondent pleaded that by virtue of a document [Exhibit P45], in which charges against him were withdrawn and substituted with a “final warning letter”, he could not be subjected to trial anymore as it amounted to condonation by his commanding officer as provided by Section 171 of the Armed Forces Act. This plea was dismissed and at the end of the day, he was found guilty, convicted and sentenced. The Court of Appeal allowed his appeal, and in dismissing the appeal filed in this Court by the Nigerian Army, Oguntade, JSC, observed- It is not in dispute that Section 171 of the Act divests any Court or Tribunal of competence to subject the Respondent to any further trial after having been condoned by the appropriate authority. Thus, if any Court or Tribunal should proceed to make pronouncements on persons such as the Respondent in spite of the condonation and damning the consequences of lack of competence, this Court cannot close its eyes on such abnormality or illegality.” Per AUGIE, J.S.C. (Pp. 46-48 paras. B)
Black’s Law Dictionary, 8th Edition defines condonation at page 315 as:
“A victim’s expressed or implied forgiveness of an offence especially by treating the offender as if there has been no offence. Condonation is not usually a valid defence to a crime. One’s spouse expresses or implied forgiveness of a marital offence by resuming marital life and sexual intimacy.”
The apex Court had however delineated the limits of condonation in the case of NIGERIAN ARMY V. AMINUN-KANO (2010) 5 NWLR (Pt. 1188) 429 at 453 – 454 per Muhammad JSC thus:
“I think we need to seek for the definition of the word “condoned” or condone which, literarily means to pardon; to overlook (as offence), to forgive or to act so as to imply forgiveness. Thus, condonation is the act of condoning or pardoning a wrong act, the implied forgiving or pardon of an offence by overlooking it. See Lexicon Webster Dictionary, Vol. 1. 1980… In law, however, the word “condone” or condonation which has several variants such as condonment, condonance, strictly speaking, has to do with marital causes specially and it connotes the conditional remission of forgiveness, by means of continuance or resumption of matrimonial cohabitation by one of the married parties of a known matrimonial offence e.g. Adultery committed by the other that would constitute a course of divorce, the condition being that the offence shall not be repeated. See Obafemi v. Obafemi (1965) 1 NWLR 446 at page 448. If adultery is charged as a ground for divorce and condonation is proved, the forgiving spouse is barred from proof of that offence…in the revised editions of 1999 and 2004 of the Black’s Law Dictionary, the authors brought to fore the definition of the word condonation as it relates to the general application of the word where they defined it to mean victims express or, especially implied, forgiveness of an offence by treating the offender as if there has been no offence.”

Condonation has two essential ingredients, they are:
1. Forgiveness of the wronged person; and
2. Reinstatement of the offending person to his former position.

The allegation of not making full disclosure of employment history was raised earlier and on that basis, the Appellant dismissed the Respondent but shortly after reinstated him until this second attempt at dismissing the Respondent. The facts therefore are not disputed and the allegation of non-disclosure is not a new allegation, the question one might ask is since it was overlooked previously, (let me not use the word condoned yet), what makes the Appellant think it would keep raking up allegations that were treated and overlooked before as if in desperation to dismiss the Respondent. Must a party use the exact word in his pleadings before he can take advantage of a legal principle on the issue? The Court is a Court of law and has unfettered right to apply legal principles that fit into facts laid before it. A Judge is not only bound by the submissions of parties, he can apply law and authorities discovered even from his personal research, see NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & ORS (2008) LPELR-1997(SC) where the apex Court held thus:
”In the case of Bakare v. Nigerian Railway Corporation (supra), Mukhtar, JSC, at pages 659-660, opined inter alia, as follows: A Judge in the course of writing his judgment is at liberty to have recourse to any provision of the law that is relevant to the subject matter of the case in controversy in order to completely give the judgment the attention it deserves, to do justice to it, and to avoid a miscarriage of justice. See Onuoha v. State (1988) 3 NWLR (Pt. 83) page 460.” Per OGBUAGU, J.S.C.

Can the application of a legal principle to facts be tantamount to making a new case for the parties? I think not. A new case for the parties would involve creating or steering the facts of a case towards a new direction outside what the parties targeted, related or contemplated by their pleadings. In this case, the fact of non-disclosure of previous employment history had come up before, considered by the Appellant and waived or forgiven; the Respondent was restored thereafter to employment. With that process liken to an administrative trial and finally, a condonation or waiver which resulted in reinstating the Respondent. These facts and the process can invite the use of the word condonation or waiver. Applying law to facts is the responsibility of the Judge and the trial Judge dutifully carried out his responsibility and did not set up a new case for the parties. A new case was defined in NNADOZIE & ORS V. MBAGWU (2008) LPELR-2055(SC) thusly:
Meaning of a “new case”. “A new case is a case which was not existing before. A new case is a different case, different from the original case. A new case is a fresh case. A new case is a case which the Court is just beginning to know about for the first time in the judicial process.” Per TOBI, J.S.C.

In the case of AKEREDOLU V ABRAHAM & ORS (2018) LPELR-44067(SC), the instances when a Court will be accused of raising an issue suo motu was explained thus:
“A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it.
In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
It has not been denied that the said letter of 10/11/16 addressed to the Deputy Chief Registrar by the Appellant’s counsel was sent to the Court by the Appellant. A Court of law is eminently qualified and entitled to look at the content of its file or records and or refer to it in consideration of any matter or issue before it. See Agbareh v Mimira (2008) All FWLR (pt 409) 559 at 589 paragraphs D – F. The issue of jurisdiction was without doubt, raised by the Appellant before the Trial Court, so the only ‘suo motu’ act of the Trial Court was to look into its records to reach a decision on the issue of jurisdiction raised by the Appellant. Although the learned Senior counsel for the Appellant contended that the issue of jurisdiction was not raised by the parties at the trial Court, the first issue actually raised by the Appellant before the Trial Court as contained in the Appellant’s Written Address filed before the Trial Court at pages 126 – 127 of the Record of Appeal proves otherwise. The 1st issue by the Appellant on page 127 of the record of appeal states:
“(1) Whether the Court did not act without or in excess of jurisdiction by granting the Plaintiff/Respondent’s application for an order for substituted service.”
The above issue before the trial Court clears any iota of doubt as to whether the issue of jurisdiction was raised before the trial Court or not. It is my view that the trial Court was right, as upheld by the Court below, to satisfy itself from all available materials placed before it that it has jurisdiction to entertain the suit and make the orders requested by the first Respondent herein as Plaintiff. Being an issue raised by the Appellant himself before the Trial Court, it is unimaginable how the Appellant’s right to fair hearing could have been infringed by the Court in the circumstance.
Let me clear some doubts. When the learned trial judge, speaking on the issue of the business address of the Appellant in the letter of 10/11/16 said that …” the 2nd Defendant/Applicant chose to gloss over the issue …” and that “… the plaintiffs counsel also was silent on it…” it presupposes that the issue was present before the Court. The mere fact that parties did not adequately argue an issue raised by them before the Court, does not mean that the issue was not raised, and as I have stated earlier, the duty of the Court is to resolve issues raised and in so doing it should not restrict itself to the limits of the arguments of parties on the issue especially where they are issues of law and also touching on the jurisdiction of the Court. The cases of Geco Prakla Nig. Ltd v Ukiri (supra) and Akere v Governor of Oyo State relied upon by the Appellant are inapplicable because the Court below held that the learned Trial Judge did not raise any issue suo motu. I agree entirely that the trial Court did not raise the issue suo motu.
Having agreed with the Court below that the Trial Court did not raise the issue suo motu, all the arguments regarding the issue of denial of fair hearing and substantial justice are of no moment. Thus the cases of Unilorin v Akinola (supra) and Adigun v Attorney General of Oyo State (supra) do not apply here.” Per OKORO, J.S.C.

​There are several decided cases on this issue. However, all pleadings relate to facts and not law, parties do not plead law but facts, see ANYANWU V. MBARA & ANOR (1992) LPELR-516(SC) and ABACHA & ORS V. FAWEHINMI (2000) LPELR-14 (SC) wherein the Per IGUH, J.S.C had this to say:
“…it is a principal rule of pleading that a party must plead material facts only and not law. It is thus not only unnecessary but contrary to the rule of pleadings to plead law, statutes, or Sections thereof before reliance can be placed on them. If a party’s case depends on a statute, all he needs do is fully to plead material facts necessary to bring his case within that statute. See Read v. Brown 22 Q.B.D. 128; Re: Vandervell’s Trusts. (No. 2) (1974) 3 All E.R. 205 at 213 (C.A.); Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 398.”

​Generally speaking, a Court is duty bound to confine its decisions to issues raised by the parties as the Court has no power to formulate cases for the parties or to speculate on the evidence of parties otherwise it might find itself entangled in the thicket of the dispute and from which it may be difficult to extricate itself. This notwithstanding, under our adjectival laws, a Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising an issue suo motu if the issue, just as in the instant Appeal was raised by both parties or by any of the parties in the proceedings. In the case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD & ORS (2006) LPELR – 1140(SC), the Supreme Court per Tobi, JSC (of blessed memory) had this to say on the subject:
“A Judge has the right in our adjectival law to use particular words and phrases which, in his opinion are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issues suo motu. A Judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation…it is the position of the law that an Appellate Court is bound by the record of Appeal. It cannot go outside the record and raise issue suo motu. If the Court raises an issue suo motu parties must be invited to address the Court on the issue. See NWIGWE vs. NWUDE (1999) 11 NWLR (PT. 626) 314; USMAN vs. GARKE (1999) 1 NWLR (PT. 587) 466; OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT. 684) 298; ARAKA vs. EJEAGWU (2000) 15 NWLR (PT. 692) 684; ALLI vs. ALESINLOYE (2000) 6 NWLR (PT. 660) 177.”
Also in the case of TOWOJU & ORS V. THE GOVERNOR OF KWARA STATE & ORS (2005) LPELR – 5390(CA), the distinction between a Judge raising an issue and raising a new issue suo motu was explained thus:
However with due respect to the learned Counsel there is a world of difference between a Judge raising an issue and raising a new issue suo motu. A trial Court is only under obligation to invite counsel to parties to address it when and only when it raises a new issue in the matter but not when it applies principles of law not cited by Counsel, whether statutory or judicial in the course of writing its judgment as it is in this appeal under consideration. In the case of Finnih v. Imade (1992) 1 NWLR (Pt. 219) P. 511 at 537, the apex Court held thus: “The principle that judgment of the Court must be confined to the issues of facts raised by the parties does not extend to the application of the law relevant to the determination of the issue before the Court. Hence, once the issues on which judgment is based are findings of facts arising from the pleadings and evidence before the Court, the fact that the Court has in the determination of the issues, applied principles of law not cited by learned Counsel will not affect the decision. This has always been the accepted law.” Per Abdullahi, J.C.A.
In addition, the case of IKENTA BEST (NIG) LTD VS. ATTORNEY – GENERAL OF RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 the Supreme Court held:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact if the issue matter or fact exists in the Litigation.”

I also see some meeting point or convergence between condonation and double jeopardy which was pleaded and both are applied in criminal trials. Condonation was described above as forgiveness and restitution while double jeopardy is not allowing a person who has been punished for an offence to be arraigned on the same facts again. Basically, facts are the ingredients upon which legal principles are applied towards a finding. The distinction between double jeopardy and condonation is mere semantics without much effect.

It is obvious that the Appellant indeed condoned the alleged misconduct of the Respondent by reinstating him after it discovered the alleged misconduct, they cannot shy away from it, there is also waiver by actions or representation that can bind the Appellant and estopped it from raising the same facts that were earlier on overlooked.

Waiver is defined as AUTO IMPORT EXPORT V. ADEBAYO & ORS (2005) LPELR-642(SC) wherein the apex Court held thus:
“In the case of Ariori & Ors. v. Elemo & Ors. (supra) referred to in the case of Odu’a Investment Co. Ltd. v. Talabi (1997)10 NWLR (Pt.523) 1; (1997)7 SCNJ 600, Idigbe, JSC. at page 22 of the NSCC Report, defining the word waiver, had this to say:- “By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.” Obaseki, JSC, on his part at page 25 of the same report, opined as follows:- “Waiver is according to Words and Phrases legally defined, Vol. 5 p. 3011969 Edt – reprinted 1874 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exist.” Per OGBUAGU, J.S.C.
Also in the case of MAIYEGUN 7 ORS V. LAGOS STATE & ORS (2010) LPELR-4459(CA) the Court held thus
“As quite rightly pointed out by the learned trial Judge this issue brings to the fore two important and very interrelated concepts of judicial adjudication, the concepts of waiver and estoppel. In ARIORI VS ELEMO (1983) 1 SC NLR P 1, ESO JSC (as he then was) explained waiver thus:
“…rather than define the word, it is probably appropriate just to describe its concept. F. Pollock said waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is little doubt that a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interest, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights or that he has suffered by his not having exercised his rights, he is, to put it in another way estopped from raising the issue.” And in CARRIBEAN TRADING & FIDELITY CORPORATION VS NNPC (1992) 7 NWLR PT 252 P 161, NIKI TOBI, JCA (as he then was) stated thus: “Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right.”

Waiver need not be specifically pleaded. It can be inferred or implied after examining the conduct of the party. To my mind it is sufficient if the party relying on it relies on the other parties’ abandonment of his right to complain.

The issue of waiver and estoppel were clear in the facts of the case, see also Section 169 of the Evidence Act, 2011 which is relevant, it says: “When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.” A person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel binds both parties and privies and the rule of estoppel is based on equity and good conscience. Estoppel may be described as a rule by which a party will not be allowed to plead the opposite of a fact which he formerly asserted by words and conduct. That is to say a party shall not be allowed to say one thing at one time and the opposite of it at another time. The rule of estoppel is based on equity and good conscience. It would thus be inequitable and unjust to the Respondent if the Appellant by their conduct made the former to believe at all times that the allegation of not making full disclosure was waived when he was reinstated. See the cases of ONWU V. NKA (1996) 7 NWLR PT 458 P1 YOYE VS OLUBODE (1974) ANLR P 657; ODADHE VS OKUJENI (1973) ANLR P 803 and SECTION 169 OF THE EVIDENCE ACT, 2011.

Another argument proffered by the Appellant is that the letter of reinstatement introduced by paragraph 3 which did not foreclose the Appellant revisiting the issue if any acts of misconduct was established against the Respondent. It states thus:
“Council, however, cautioned that should any form of misconduct and irregularity be established against you in the course of employment and discharge of responsibilities in the University, you will be disciplined in accordance with laid down regulations.”

This is part of the letter of reinstatement, it is futuristic and therefore cannot have retrospective effect but forward looking and aimed at subsequent acts of misconduct because the allegation of concealment of employment history had been known, waived and condoned. The paragraph is in the letter of reinstatement and therefore not relevant here because there was no fresh allegation of concealment against the Respondent. The reinstatement was after the Appellant allegedly became aware and confronted the Respondent with the allegation and proceeded to insert above clause in the letter of reinstatement. It simply means that the known allegation has been overtaken, waived and condoned but still the Respondent remains an employee subject to disciplinary measures upon fresh allegations or future misconduct.

The Appellant also tried to inject the issue of jurisdiction, I have reviewed the reliefs and I do not find any relief that is outside the jurisdiction of the trial Court. There is also a fundamental difference between substantive jurisdiction and procedural jurisdiction and once the Court has substantive jurisdiction, a challenge to procedural jurisdiction cannot defeat the action, it may be a mere irregularity, see the case of ODOM & ORS V. PDP & ORS (2015) LPELR-24351(SC) and OBIUWEUBI V. CBN (2011) LPELR-2185(SC).
I resolve issue one against the Appellant.

ISSUE TWO
Whether the learned trial Judge was right in nullifying the dismissal of the Respondent and ordering his reinstatement in the service of the Appellant after holding that the Respondent was guilty of the allegation of concealment of employment history for which he was dismissed by the Appellant and that the Respondent was given adequate opportunity to defend himself of the said allegation before his dismissal.
The trial Judge nullified the dismissal of the Respondent even after a finding that there was concealment of employment history. The basis of the nullification is simply that upon the discovery by the Appellant, it dismissed the Respondent and reinstated him and therefore, it condoned the act of concealment of employment history. There was actually no concealment any longer, the Appellant was aware and moved on from there in their relationship with the reinstatement of the Respondent. There is nothing complicated here. The act of reinstatement cleared previous concealment and obliterated the previous acts of misconduct because the Appellant was then aware and cannot under any guise deny or allege that it was not aware. That explains and justifies the use of the word condonation by the trial Judge because the facts fit perfectly into the scenario created by the Appellant, it simply forgave, overlooked and ignored same in reinstating the Respondent. The trial Judge did not err in any way. The trial judge merely applied legal principles to the facts established before him.

That has nothing to do with the power of the employer to discipline the employee when an infraction occurs. The Appellant retains that power but it also has the unfettered discretion to condone misconduct. If there is any subsequent act of misconduct, the employer in this case has the unfettered right to discipline an employee but it cannot rely on acts it previously overlooked, that will be unfair and the law cannot allow it to stand, and that is when estoppel, waiver and condonation can kick in to the appellant from such oppressive action.
I resolve issue two against the Appellant.
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ISSUE THREE
Whether the learned trial Judge did not err in law when he discountenanced the declaratory reliefs sought by the Respondent in paragraph 40 (1-9) of the Respondents Amended Statement of claim, but nevertheless proceeded to grant the consequential reliefs sought by the Respondent in paragraph 40 (10-11) of his amended statement of claim.
It is trite that a trial Judge or Court cannot grant reliefs not sought by a party in the suit, it is not a father Christmas and Christmas comes only once in December. The declaratory reliefs were refused by the trial Judge but he made the following order:
“On the whole and going by the above, I hold and declare that the dismissal of the claimant from the service of the defendant after the reinstatement and demotion of the claimant is unlawful, null and void. I also declare that the letter of dismissal dated 15th December, 2017 is nullified and set aside and the defendant is consequently directed to reinstate the claimant to his work. Meanwhile, the prayer for the payment of the claimant’s entitlements, salaries and allowances is hereby refused.”

The Appellant admits what was granted were part of the reliefs sought even though he labelled it consequential or ancillary reliefs. A consequential relief was described in the case of TITUS & ORS V. BADO (2018) LPELR-44002(CA) wherein the trial Court held thusly:
“A consequential relief is a relief incidental to the main relief(s) which was not claimed by the party in question. It is designed to enable the Court do justice between the parties. See Eze & Ors vs. Governor of Abia State & Ors (2014) LPELR – 23276 SC page 30 per Onnoghen, JSC (as he then was).” Per ABIRIYI, J.C.A.

​Looking at the reliefs reproduced by the Appellant, relief 7 is closely related to the reliefs granted and therefore the Appellant cannot claim that the reliefs have no basis or foundation and therefore the lower Court could not make the orders made. The Court made a fundamental finding that the dismissal was wrongful and ordered reinstatement. When a dismissal is wrongful in an employment with statutory flavor, the only option opened to the Court is to order reinstatement and the trial Judge did what the law demands him to do in such circumstance. It cannot be an error where the trial Judge applies the law to the facts and makes necessary orders to give effect to the orders made.

The essence of a consequential order was considered in the case of NYAKO V. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822(SC) wherein the apex Court had this say:
“In Awoniyi v. Reg Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, this Court re-stated the purpose of a consequential order “The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject-matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour.”Per MUHAMMAD, J.S.C.

​The most fundamental factor to consider in this situation is the fact that the reliefs were granted upon clear findings made based on credible and cogent evidence before the Court and once the trial Court makes findings supported by evidence, the Appellate Court will not interfere, see the case of IRIRI & ORS V. ERHURHOBARA & ANOR (1991) LPELR-1536(SC) wherein the apex Court held thus:
”…Where the trial Court has made specific findings of fact supported by the evidence, it is not the duty of the Court of Appeal to interfere with such findings once the Court of Appeal is satisfied that the findings were based on the evidence. See the case of Chief Ebba v. Chief Ogodo & Anor. (1984) 1 S.C.N.L.R. 372.” Per OLATAWURA, J.S.C.

I have no reason to disturb the findings made by the trial Court in this appeal. The trial Judge did not err and I resolve this issue against the Appellant.

Having resolved all the three issues donated for determination against the Appellant, the appeal lacks merit and must be dismissed. It is hereby dismissed. The judgment of the trial Court delivered by HON. JUSTICE S. H. DANJIDDA, J on the 4th February, 2020 is hereby affirmed.
I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft of the lead judgment of my learned brother Y.B. NIMPAR, JCA and I am in complete agreement with her reasoning and conclusions on all the three issues distilled for determination.

My Lord’s erudite and analytical approach to the issues in coming to the inevitable dismissal of the Appellant’s Appeal, cannot be faulted. On the first issue whereof the learned counsel to the Appellant contended strongly that the Respondent did not make any case of condonation to warrant the lower Court’s judgment in Appellant’s favour, my Lord has adequately cited the authorities of PML (NIG.) L.T.F. V. F.R.N (2017) LPELR 43480 (SC); Blacks Law Dictionary, 8th Edition at page 315, Nigerian Army v. Kano (2010) 5 NWLR (pt. 1188) 429 at 453 – 454 on the definitions of the word “Condonation”. Where, as in this case, the Appellant had forgiven the Respondent on his alleged non-full disclosure of his employment history by which reason the Appellant had earlier dismissed the respondent and was subsequently reinstated, the Appellant indeed condoned and/or waived the dismissal and the reason therefor.

​Accordingly, unless and until the Respondent commits a similar act of misconduct, the same reason for his dismissal which was condoned or waived in reinstating the Respondent cannot be the basis of his dismissal as was done by the Appellant. Little wonder then that the learned trial Judge declared the dismissal of the Respondent as a nullity since the respondent had been reinstated. In Maiyegun v. Governor of Lagos State (2011) 2 NWLR (pt. 1230) 154 at 169 – 170 Paras. H-B; Rhodes-Vivour, JCA (as he then was) with whom Galinje, (as he then was) and Hussein Mukhtar, (now of blessed memory concurred) while relying on the Supreme Court case of Ariori v. Elemo (1983) 1 SCNLR page 3, per Eso, JSC and Carribbean Trading Fidelity Corporation v. NNPC (1992) 7 NWLR (Pt. 252) 161 per Tobi, JCA (as he then was) on the relationship between waiver and estoppel where it was held that: “Waiver is a simple and untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. According to Pollock the concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefits, or where he has a choice of two, he decides to take one and not both. The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best Judge of his own interests. If therefore, having full knowledge of the rights, interest, profits or benefits conferred upon or accruing to him by and under the law, but intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, stopped from raising the issue”.
Making the point clearer, Niki Tobi, (as then was) in the latter case (Caribbean Trading and Fidelity Corporation v. N.N.P.C (supra) that:
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right”.

In the light of the foregoing authorities, I am in complete agreement with my learned brother that since the reinstatement was after the Appellant allegedly became aware and confronted the Respondent with the allegation of concealment of employment history and proceeded to include in the letter of reinstatement that the Respondent was cautioned that should any form of misconduct and irregularity be established against him in the course of his employment and discharge of his responsibilities in University, he will be disciplined in accordance with laid down regulations, it simply means that the known allegation had been overtaken by events, waived and/or condoned and that Respondent remained on employee subject to disciplinary action should any future misconduct or breach of the regulations be perpetrated by the respondent.

​On this score, I also resolve Issue 1 (ONE) in favour of the Respondent and abide by my Noble lord’s conclusions on Issues numbers 2 and 3 to also dismiss the Appellant’s Appeal while the judgment of the lower Court per S. H. Danjidda delivered on the 4th of February, 2020 is hereby affirmed. I abide the consequential order also to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree with the reasoning and conclusion reached by my learned brother Hon. Justice Yargata Byenchit Nimpar, JCA. I adopt same as mine. The appeal is thus dismissed by me.
I abide by the consequential order as it relates to costs.

Appearances:

S.D. SWEM, ESQ., with him, T.T. AKUHA, ESQ. For Appellant(s)

O.D. OBANDE, ESQ., with him, P.O. ONAH, ESQ. For Respondent(s)