FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ORS V. DR. CHARLES NZELU & ANOR (2013)

FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ORS V. DR. CHARLES NZELU & ANOR

(2013)LCN/6367(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of June, 2013

CA/A/347/2011

RATIO

WHETHER A FRESH ISSUE MAY BE RAISED ON APPEAL

The law is settled that a party will not be allowed to raise fresh issue on appeal, an issue which the lower court has not had the opportunity of considering and pronouncing upon, unless he obtains the leave of court to do so. G.T.B PLC VS. FADCO LTD (2007) 7 NWLR (Pt. 1033) 307; OJIOGU VS. OJIOGU (2010) 9 NWLR (Pt. 1198) 1. Whether the fresh issue is one of law or otherwise, there is need to seek and obtain leave -OBIOKOR VS. STATE (2002) 10 NWLR (Pt. 6) 612. If a party argues a fresh issue in a situation where leave is required and where he failed to obtain the leave of court, then his arguments on the point shall be discountenanced by the court. LAMBERT VS. NIGERIAN NAVY (2006) 7 NWLR (Pt. 980) 514 and BORISHADE VS. N.B.A. LTD (2007) 1 NWLR (Pt. 1015) 217. However, where the issue is one of jurisdiction, then leave is not required and it can be raised at any time – OYAKHIRE VS. STATE (2006) 15 NWLR (Pt. 1001) 157; AKINTARO VS. EEGUNGBOHUN (2007) 9 NWLR (Pt. 1038) 103 and ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR (PT 1150) 592. PER ABUBAKAR DATTI YAHAYA, J.C.A.

WHETHER AN APPEAL COURT MAY INTERFERE WITH THE FINDINGS OF FACTS MADE BY A TRIAL COURT

An appellate court would not normally alter or interfere with the findings of facts made by a trial court which had the singular honour of seeing and watching witnesses and their demeanour whilst testifying. However, there are exceptions to this general rule, which will necessitate interference, such as where –

(a) the findings are perverse or not supported by credible evidence; or

(b) the trial court failed to evaluate or properly evaluate the evidence; or

See WAHAB SAPO VS. BINTU SUNMONU (2010) 5 SCNJ 1 at 25; EZEAFULUKWE VS. JOHN HOLT LTD (1996) 2 NWLR (Pt. 432) 511 and CHIEF OSHE VS. OKIN BISCUITS LTD. (2010) 3 SCNJ (Pt. 11) 381 at 390. PER ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

2. FEDERAL CAPITAL TERRITORY ADMINISTRATION

3. HON. MINISTER FEDERAL CAPITAL TERRITORY – Appellant(s)

AND

1. DR. CHARLES NZELU

2. DR. JERRY O. OGUZIE – Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This appeal arose from the judgment of the High Court of Federal Capital Territory, Abuja, delivered on the 29th day of April 2011 in Suit No.FCT/HC/CV/382/09.

The claims of the respondents who were the plaintiffs at the trial court, in the joint Amended Statement of claim, are: –

(a) A declaration that the plaintiffs having been re-instated are entitled to all the financial benefits and promotions attached to their offices as staff of the 1st Defendant which they were deprived of from the dates of their purported disengagement and or retirement in 2006 till the date they assume duties.

(b) An order of this Honourable Court directing the payment of the financial benefits and other entitlements due to the plaintiffs from the day they were compulsorily disengaged and/or retired till the date they finally assume duties.

(c) An order of this Honourable Court directing the defendants to promote the plaintiffs to the salary grade levels of their colleagues employed the same time with them.

(d) A perpetual injunction restraining the Defendants whether by themselves, assigns, agents, privies or whosoever purporting to act on their behalf from interfering with the employment of the plaintiffs until they attain the statutory age of retirement or have put in the mandatory 35 years in service.

(e) The sum of N250 million as General Damages for the unlawful disengagement and or retirement.

At the trial, each of the respondents gave evidence. The appellants also called one witness.

The facts of the case, according to the Appellants, reveal that the respondents were informed that a re-structuring was going on in the FCT and as such, their services were no longer needed. This was in a letter dated the 1/10/2006. The respondents made many appeals to the FCT and at last, the appellants wrote a letter to the respondents on the 22/7/09 informing them that the 3rd appellant had approved their re-instatement subject to three conditions stated therein, and they were asked to write a letter of acceptance for further processing, should they accept the terms of the letter. They did not write such acceptance letter.

From the grounds of appeal, the appellants, in their brief of argument filed on the 26/7/11 by their counsel E. Achukwu, distilled two Issues for determination to be –

1. Whether the learned trial judge was right in holding that the Respondents have been validly re-instated into the service of the 1st appellant and as such that the respondents were entitled to all the financial benefits and promotion attached to their offices as staff of the 1st appellant from the date of the retirement till the date they resume duties.

2. Whether the learned trial judge was right in holding that the respondents’ suit was not caught by the time limitation placed on such suits by the Public Offices Protection Act, Cap P41, Laws of the Federation of Nigeria 2004.

The respondents in their brief of argument deemed filed on the 8/10/12, identified three issues thus –

1. Whether the learned trial judge was right in holding that the Respondents have been validly re-instated into the service of the 1st Appellant and as such that the Respondents were entitled to all the financial benefits and promotion attached to their offices as staff of the 1st Appellant from the date of their retirement till the date they resume duties.

2. Whether the learned trial judge was right in holding that the Respondents’ suit was not caught up by the time limitation placed on such suits by the Public Officers Protection Act, Cap P41 Laws of the Federation of Nigeria, 2004.

3. Whether the trial court was right in finding for the Respondents and granting the reliefs so granted/orders so made?

The respondents have not cross-appealed and they cannot therefore, identify issues that do not flow out of the grounds of appeal filed by the appellants. This is what Issue No. 3 identified by the respondents is all about. Even if it is argued that Issue No. 3 as formulated is covered by the grounds of appeal, then it is ground 1 of the appeal. Since an Issue (Issue No. 1) has already been formulated from ground one, another issue cannot be formulated from the same ground 1 – IKENNE LOCAL GOVERNMENT VS. W.A.P.C PLC. (2011) 12 NWLR (Pt. 1261) 223 at 239. I will therefore resolve this Appeal on the 2 Issues formulated by the appellants.

ISSUE 2

Whether the learned trial judge was right in holding that the respondents’ suit was not caught by the time limitation placed on such suits by Public Officers Protection Act Cap P41, Laws of the Federation of Nigeria, 2004.

Learned counsel for the appellants submitted that the trial judge was wrong when he held that the Suit was instituted within time and was not barred. Learned counsel referred to exhibits D and H dated 22/7/09, the averments in paragraph 28 of the Amended Statement of claim which averred that the respondents were served on the 5th and 6th of November 2009 with exhibits D and H, and argued that no cogent and direct evidence was led to prove this fact. He argued that since it was a declaratory relief, the respondents should have tendered signed slips or acknowledgement copies of exhibits D and H and not simply rely on the averments in the Amended Statement of Claim, which was denied any way. He referred to HENSHAW VS. EFFANGA (2009) 11 NWLR (Pt. 1151) 65 at 71 – 72. Since the action was commenced outside the three months required by the said Public Officers Protection Act, it is statute-barred, he argued – MOHAMMED VS. LAWAL (2006) 9 NWLR (Pt. 985) 400 at 408 and LAUTECH VS. OGUNMOBI (2006) 4 NWLR (Pt. 971) 569 at 579.

Learned counsel for the respondents made copious references to authorities on the meaning of cause of action, when it accrues and the fact that it is crucial in determining whether an action is caught by a limitation law or not – PATIKUM INDUSTRIES LTD VS. NIGER SHOES MANUFACTURER CO. LTD (1986) 5 NWLR (Pt. 93) 138 at 140; A.G. FEDERATION VS. A.G. ABIA (2001) 11 NWLR (Pt. 725) 689 at 702; ALALADE VS. MOROHUNDIYA (2002) 16 NWLR (Pt. 792) 81 at 86; OGBAH VS. B.D.U. JOS BRANCH (2001) 3 NWLR (Pt. 701) 579 at 582; NEPA VS. OLAGUNJU (2005) 3 NWLR (Pt. 913) 602 at 608 and L.U.T.H. VS. ADEWOLE (1998) 5 NWLR (Pt. 550) 406 at 409.

Counsel submitted that the day the respondents received their letters of re-instatement on the 5th and 6th of November 2009, was the day the cause of action arose and those were the days that time began to run. Since the action was filed in December 2009, the action was commenced within time, he argued.

Counsel referred to paragraphs 28 and 32(b) of the Amended Statement of claim and argued that they were never specifically denied or controverted by the appellants. They were therefore deemed admitted as unchallenged and there was no need for further proof. He referred to P.I.P.C.S. LTD VS. ULACHOS (2008) 4 NWLR (Pt 1076) 1 at 4; HONIKA SAWMILL (NIG) VS. HOFF (1994) 2 NWLR (Pt. 326) 273 BAMGBEGBIN VS. ORIARE (2009) 13 NWLR (Pt. 1158) 370 at 377 and OMEGA BANK VS. O.B.C. LTD (2002) 16 NWLR (Pt. 794) 483 at 494.

Counsel further submitted, that credible evidence which is unchallenged and uncontroverted is liable to be accepted and acted upon by the court – ODIWE VS. NWAJEI (2000) 4 NWLR (Pt. 651) 86 at 88; IEKA VS. TAYO (2007) 11 NWLR (Pt. 1045) 385 at 389; S.P.D.C.N. LTD VS. ESOWE (2008) 4 NWLR (Pt. 1076) 72 at 76 and DANTIYE VS. KANYA (2009) 4 NWLR (Pt. 1130) 13 at 18.

In the Reply to the Respondents’ brief of argument, counsel for the appellants submitted that pleadings do not constitute evidence and that a party must lead credible evidence in support of pleadings, otherwise they go to no issue. VEEPEE IND. LTD VS. COCOA IND. LTD (2008) 13 NWLR (Pt. 1105) 486 at 509 and EGOM VS. ENO (2008) 12 NWLR (Pt. 1098) 320 at 343. Since there is no credible evidence led by the respondents in support of the pleadings that they received the letters of re-instatement on the 5th and 6th November 2009, he said, the Issue should be resolved against them.

Paragraph 14 of the Amended Statement of claim reads –

“The Plaintiffs aver that this recommendation of the Review Committee was subsequently approved by the 3rd defendant. The said approval was communicated to them through letters of Reinstatement with Ref. No. FCTA/E and T/S. 809/204 dated the 27th day of July 2009 but delivered to the 1st Plaintiff on the 5th day of November 2009, while that of the 2nd plaintiffs letter is with Ref. No. FCTA/E and T/S/809/246 was delivered to him on the 6th day of November 2009….”

The same averments of delivery of the re-instatement letters on 5th and 6th November 2009, were repeated at paragraphs 28 and 32(b) of the Amended Statement of Claim.

Contrary to the submissions of counsel for the respondents at page 11 of the respondents’ brief, paragraph 4.2.11, that “these averments were never specifically denied or controverted by the appellants”, the appellants had indeed specifically denied them. Paragraph 3 of the statement of defence, filed by the appellants, reads –

“The Defendants deny paragraphs 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31 and 32 of the Amended Statement of Claim and put the plaintiff to the strictest proof of the allegations therein contained.”

The parties had therefore joined issues as to when the re-instatement letters were served on the respondents.

The onus of proof lies on a party who avers a particular fact in his pleadings, otherwise it will be deemed abandoned. See YUSUF VS. OYETUNDE (1998) 12 NWLR (Pt. 579) 483; U.B.N PLC. VS. AYODERE LTD (2007) 13 NWLR (Pt. 1052) 587. In this wise, the burden is on the respondents to lead credible evidence as to when they were served with the letters.

Pages 62 – 65 of the record of appeal, contain the 1st respondent’s evidence (witness statement) on oath. It is evidence before the trial court. Pages 76 – 79 of the record of appeal contain the 2nd respondent’s evidence (witness statement) on oath. Paragraph 14 of the 1st respondent’s statement on oath states –

“That this recommendation of the Review Committee was subsequently approved by the 3rd Defendant. The said approval was communicated to me via a letter of Reinstatement with Ref. No. FCT/A/E and T/S 809/204 and dated the 22nd day of July 2009 but delivered to me on the 5th day of November, 2009.

As for the 2nd respondent, paragraph 13 of his statement on Oath states –

“That this recommendation of the Review Committee was subsequently approved by the 3rd Defendant. The said approval was communicated to me via a letter with Ref. No. FCTA/E and T/S/809/246 was delivered to him (me) on the 6th day of November, 2009.

It is clear from these two paragraphs that the respondents had led clear evidence in support of their averments in the Amended Statement of Claim as to the dates they received their letters of reinstatement. It is therefore incorrect, to state, as the appellants have done in their Reply to the Respondents’ brief at page 4, that there is “absence of any credible evidence from the Appellants (it should read respondents) in proof of the averments in their pleadings that they received the letters of reinstatement on the 5th and 6th days of November 2009.” The evidence before the trial court that the letters were delivered on the 5th and 6th of November 2009 to the respondents, was not challenged under cross-examination at all, thereby accepting and indicating that the evidence was correct and authentic. The appellants had also not proffered any evidence oral or documentary, to counter the evidence on oath, led by the respondents. The 1st, 2nd and 3rd defendants’ witness statement on oath at pages 91 – 92 of the record of appeal did not say anything regarding the delivery of the letters of reinstatement. The position therefore, is that the evidence led by the respondents in this regard is unchallenged and uncontroverted.

It is trite, that if a trial court finds the evidence led by a plaintiff believable, reliable and it accepts it, and the evidence supports the case of the plaintiff, then he will be entitled to judgment in that regard – BELLO VS. ARUWA (1999) 8 NWLR (Pt. 615) 454; WOLCHEM VS. GUDI (1981) 5 S.C. 291, GEORGE VS. U.B.A (1972) 8 – 9 SC 264 and IEKA VS. TAYO (2007) 11 NWLR (Pt. 1045) 385.

The trial judge at page 170 of the record of appeal found that: –

“the evidence of PW1 to the effect that they received their letters of reinstatement on the 5th and 6th day of November 2009 respectively was never disputed nor controverted by the Defendant.”

He therefore believed the evidence, placing reliance on IYERE VS. BENDEL FEED and FLOUR MILL (2008) 7 – 12 SC 187, and held that the Suit was not statute-barred.

(a) the findings are perverse or not supported by credible evidence; or

(b) the trial court failed to evaluate or properly evaluate the evidence; or

See WAHAB SAPO VS. BINTU SUNMONU (2010) 5 SCNJ 1 at 25; EZEAFULUKWE VS. JOHN HOLT LTD (1996) 2 NWLR (Pt. 432) 511 and CHIEF OSHE VS. OKIN BISCUITS LTD. (2010) 3 SCNJ (Pt. 11) 381 at 390.

The evidence that the letters of reinstatement were delivered to the respondents on the 5th and 6th November 2009, is relevant to the issue in controversy and has not been challenged, contradicted or discredited by the appellants. It is such that probative value ought to be ascribed to. The trial judge was right when he believed same and allowed it to influence him in concluding that the Suit was not statute-barred. This court cannot interfere with his correct evaluation of the evidence – OGUMA (NIG) LTD VS. I.B.W.A (1988) 1 NWLR (Pt. 73) 638. After all, an unchallenged and uncontroverted evidence ought to play against that party who should have challenged or contradicted it but had failed to so do – S.P.D.C.N LTD. VS. ESOWE (Supra).

The Suit was filed at the lower court on the 8/12/2009 for a cause of action that was made known to the respondents on the 5th and 6th of November 2009. It was therefore filed within time and was not statute-barred. Issue No. 2 is resolved in favour of the respondents and against the appellants.

ISSUE NO 1

Whether the learned trial judge was right in holding that the respondents have been validly reinstated into the services of the 1st appellant and as such that the respondents were entitled to all the financial benefits and promotions attached to their offices as staff of the 1st appellant from the date of the retirement till the date they resume duties.

Learned counsel for the appellants submitted that the trial judge was wrong when he held that the respondents had been validly reinstated into the service and were thus entitled to all the financial benefits and promotions from the date they resume duties. He referred to the letters of reinstatement dated 22/7/09 (exhibits D and H) and said that they contain three conditions which ought to have been accepted and conveyed in letters of acceptance. The two respondents had given evidence and had stated that they did not accept the conditions and had also not forwarded the letters of acceptance. In such a scenario, he argued, the respondents were not reinstated and there was no legal basis for the trial judge to say they were and to order the payment of financial benefits and promotion. Counsel argued that the case of GOVERNOR OF KWARA STATE VS. OJIBARA (2006) 18 NWLR (Pt. 1012) 645 relied upon by the trial judge is in applicable as it never decided that “a letter of reinstatement need not contain any condition…. and that the facts are not the same with the Suit because in the Kwara State case, the court had made a pronouncement, following declaratory prayers, that the plaintiffs’ removal as State Independent Electoral Commissioners, was null and void and in the eyes of the law, they had never been removed from office. In this case, the respondents did not sue for wrongful termination of employment and the court has not declared that their retirement was wrongful or that the conditions stipulated in exhibits D and H are invalid, null and void.

Counsel argued that exhibits D and H were offers made to the respondents, which they ought to have accepted before the contract could come into existence. Since they did not, there was no valid acceptance and no contract – AMANA SUITES HOTELS VS. P.D.P (2007) 6 NWLR ((Pt. 1031) 453 at 456. He urged us to resolve the issue in favour of the appellants.

For the respondents, learned counsel submitted that the trial judge was right when he held that the respondents had been validly reinstated. This is because the letters were headed “Letters of Reinstatement” and each of the first paragraphs therein, shows that the respondents had been validly reinstated and there was no conditional reinstatement.

It was the argument of counsel that the conditions stipulated in paragraph 2 of exhibits D and H, show that the terms and conditions only apply to the recall of the respondents and actual resumption of duty, without any time limit. He drew distinction between “Reinstatement” and “Resumption”. Counsel also referred to paragraph 3 of each of exhibits D and H, and submitted that the conditions stipulated referred to “recall” and not “reinstatement”.

Counsel then went on to make submissions from paragraphs 4.1.10 of page 5 of the Respondent’s brief, up to paragraphs 4.1.14 at page 6 on the status of the employment of the respondents, as statutorily-flavoured and which were put to an end without correctly observing the procedure to so do. The effect, he argued, is that the respondents were deemed to have remained in the employment of the appellant and never left. The reinstatement is therefore as if the respondents never left and should be entitled to their financial benefits and promotions. He urged us to resolve the Issue in favour of the respondents.

In the Appellant’s Reply brief, counsel submitted that exhibits D and H should be read as a whole to determine their substance and not the form, irrespective of the heading -JADESIMI VS. EGBE (2003) 10 NWLR (Pt. 827) 1 at 31 and NATIONAL INSURANCE CORPORATION OF NIGERIA VS. POWER CO. LTD (1986) 1 NWLR (Pt. 14) 1 and F.R.N VS. DARIYE (2011) 13 NWLR (Pt.1265) 521 at 547.

Counsel also argued that the arguments of the respondents to the effect that their employment has statutory flavour and laid down procedures must be followed before termination can be effected, is a fresh issue which had not been canvassed at the court below, to enable it to be raised here on appeal. He urged us to discountenance them, citing OPOBIYI VS. MUNIRU (2011) 18 NWLR (Pt. 1278) 367 at 403 and DIRECT LTD VS. SOF TECH LTD (2011) 10 NWLR (Pt. 1256) 442 at 454.

All the submissions of counsel from paragraph 4.1.10 at page 5 to paragraph 4.1.14 at page 6 of the Respondent’s brief, are fresh issues canvassed before this court. They were not raised below and the court did not consider and pronounce upon them. The respondents have not sought for and have not obtained leave to raise them in this court. They are incompetent and are hereby discountenanced.

It has long been established, that words in a statute, are to be given their plain, natural and ordinary meaning where there is no ambiguity. See BARLET (NIG) LTD. VS. KACHALLA (1995) 12 SCNJ 147; NATIONAL BANK VS. WEIDE LTD (1996) 9 – 10 SCNJ 147; OWENA BANK PLC. VS. N.S.E LTD (1997) 8 NWLR (Pt. 315) 15, cited in AMUSIKE VS. REGISTRAR CAC (2010) 13 NWLR (Pt. 121) 337. The statute must be read as a whole and related sections are to be confined together. See BRONIK MOTORS LTD. VS. WEMA BANK LTD (1983) 1 SCNLR 296.

It is also the law, that the principles followed in the interpretation of statutes, are the same as those for the interpretation of documents. See OGBONNA VS. A.G. IMO STATE (1992) 1 NWLR (Pt. 220) 647.The document has to be read as a whole and given the natural meaning. The documents have to be interpreted according to the circumstances in which they were drawn up.

The letter of Reinstatement at page 18 of the record of appeal, written to the 1st respondent is in pari materia with that written to the 2nd respondent. The first paragraph reads –

“I am directed to inform you with pleasure that the Honourable Minister of FCT has approved your reinstatement into the services of the FCT Administration. This is sequel to your appeal against your disengagement from service in 2006.”

The above is very clear and unambiguous. It simply means that the respondents have been reinstated into the services of the second appellant, from which they had earlier been disengaged in 2006. It is because the words used are so plain, that the respondents in instituting the suit at the lower court, did not pray that they be declared reinstated. They only prayed for a declaration to be paid their financial entitlements and for promotion, because they had already been re-instated. In their words, “having been reinstated”. But as stated earlier, a document has to be read as a whole and considering the circumstances in which it has been drawn. The rest of the letter of reinstatement goes on to state –

“2. However, your resumption of duty and restoration of salary is subject to the following conditions: –

(i) The period between October, 2006 and the date of your assumption of duty shall not attract financial benefits or promotion in retrospect.

(ii) You shall refund the retirement benefits earlier collected or alternatively the said sum shall be deducted from your monthly salary as will be calculated by Department of Treasury.

(iii) Restoration of your salary will commence from the date you assume duty.

(3) If you accept the terms of recall listed in paragraph 2(i – ii), you would be required to forward letter of acceptance for further processing.”

In my view, the letter is very clear and read as a whole, it means that although the respondents have been reinstated, they will not be allowed to resume their duties and enjoy the restoration of their salaries, unless they accepted the three listed conditions and expressly say so in writing, via a letter of acceptance.

It is not controverted, that the respondents did not forward to the appellants, the letters of acceptance of the terms of the reinstatement letters. Under cross-examination, both respondents said so.

PW1 at page 139 of the record said –

“I didn’t put an acceptance letter to the Letter of Re-engagement.”

PW2 at page 142 said –

“I didn’t accept the Letter of Reinstatement.”

So, by their own in action or refusal to accept the terms contained in the reinstatement letters, the respondents had rendered their reinstatement a phyrric victory. This is because it is futile to be reinstated but fail to resume duty. They cannot be entitled to the benefits, financial and otherwise, of a staff of the appellants, enjoy the opportunity for promotion, unless they resume work. No staff of any organization can be entitled to the payment of salaries etc, if he stays at home and refuses to go to work and perform his duties. It is the resumption of duty that is conditional. It is what will entitle them to the financial benefits and promotions. They have refused to accept the conditions and have kept away from resuming their duties. Their reinstatement, is by their deliberate refusal to send letters of acceptance, therefore only paper worth. It has not crystallized into any concrete action. These points are further highlighted and made worse, by the fact that in the joint Amended Statement of Claim, the respondents never prayed for a declaration that their disengagement was wrongful or unlawful. They did not pray for a declaration that they are still in the service of the 2nd appellant and the trial court did not make these declarations. Learned counsel for the respondents had submitted at paragraph 4.1.7, page 5 of the respondents’ brief, that

“the conditions listed for resumption of duty is what the Respondents went to court to challenge.”

I have not seen in the Joint Amended Statement of claim, where the respondents had challenged the conditions listed in the reinstatement letter. Even if there is such a challenge, the trial court did not make a pronouncement on same, to the effect that the conditions are onerous or inapplicable. This is why the order made by the trial judge for the payment of all the “financial benefits and other entitlements due to the plaintiffs from the day they were compulsorily disengaged and/or retired”, is difficult to appreciate. If they are to be paid their financial benefits from when they were disengaged, then when will there be a cut-off date? Are they to continue to be paid salaries and be promoted until they reach retirement age, even though they have not resumed duty and are at home? His orders thereto could only be possible, if he had declared that the disengagement was unlawful and they were still in service. He never made such declarations.

In my view, when the respondents received their letters of reinstatement, and since they did not challenge their disengagement in 2006 in a court of law, but resorted to appealing to the appellants for reinstatement, they had options to either –

(a) accept the conditions spelt out in the reinstatement letters and resume work; or

(b) challenge the conditions stated and get them set aside in a court of law.

The respondents did neither of these. I cannot therefore see how they can be paid any entitlements and promoted, having failed to comply with the conditions clearly and expressly set out in exhibits D and H. They cannot be paid for doing nothing when their disengagement has not been pronounced by a court as unlawful or wrongful. Issue No. 1 is thus resolved in favour of the appellants and against the respondents.

Although Issue No. 2 has been resolved in favour of the respondents, the success of Issue No. 1 has effectively rendered the appeal successful and meritorious. The appeal succeeds and it is allowed. The judgment of the trial High Court of Justice of the Federal Capital Territory Abuja, delivered on the 29th day of April 2011, in Suit No. FCT/HC/CV/382/2009 is hereby set aside.

No order as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read before now the judgment of my learned brother Yahaya JCA, just delivered and I agree with the reasoning and conclusion arrived thereat.

It is trite that parties are bound by their claim and any relief granted must be founded on the claim established by credible evidence. The Respondents in their joint amended statement of claim prayed for a declaration that the plaintiffs having been re-instated are entitled to all the financial benefits and promotions attached to their office as staff of the 1st Respondent which they were deprived of from the date they assume duties. Based on the evidence they led in the support of their claim at the Court below, their claim was granted. All the parties are in consensus that Respondents’ were retired. Therefore the payment of entitlement for financial benefits and promotions can only be made after a court has declared the retirement illegal or at the discretion of the 1st Appellant to pay entitlement during the period of retirement.

The Respondents did not sue the Appellants for wrongful termination of employment and the court did not declare their retirement wrongful and illegal nor the conditions for reinstatement stipulated in exhibits D and H, the letters of retirement as invalid, null and void.

Consequently the conditions stipulated in exhibit D and H must precede resumption of duty. Reinstatement to an office without resumption to work renders their reinstatement stale a victory without value. Respondents did not accept the stipulated conditions in their letters of reinstatement which must be accepted or rejected before they can resume work. They are not entitled to promotion and entitlement.

For the above and the fuller reasoning in the lead judgment, I also hold that there is merit in the appeal and it succeeds and is allowed.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in advance the judgment just delivered by my learned brother, Abubalar Datti Yahaya, JCA. My lord has exhaustively dealt with the issues that have arisen in the appeal. I agree entirely with his reasoning and conclusion that the appeal is meritorious and it is accordingly allowed. No order as to costs.

Appearances

Chike Akalonu (holding brief of Emmanuel Achukuri)For Appellant

AND

Amobi Nzelu (with O. C. Onwuekwe and Ijeoma Dan-Nzelu)For Respondent