GOVERNOR, EKITI STATE & ORS v. KOLADE (2021)

GOVERNOR, EKITI STATE & ORS v. KOLADE

(2021)LCN/15140(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, May 14, 2021

CA/EK/99/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. GOVERNOR, EKITI STATE 2. ATTORNY GENERAL, EKITI STATE 3. EKITI STATE GOVERNMENT APPELANT(S)

And

KOLAPO KOLADE RESPONDENT(S)

RATIO

WHETHER AN APPELLATE COURT CAN EXAMINE A DOCUMENTARY EVIDENCE

It is important at this juncture to examine Exhibit LP3, being documentaryevidence, this Court as an Appellate Court is in as good a position as the trial Court to so do, since such examination will not involve the credibility of witnesses, vide the case of N. P. A. VS. DUNCAN MARITIME NIG. LTD (supra) cited by the Appellants. PER BALKISU BELLO ALIYU, J.C.A.

IMPORTANCE OF DOCUMENTARY EVIDENCE TO ORAL EVIDENCE

POSITION OF THE LAW REGARDING WHEN AN APPELLANT ALLEGES THAT A DECISION IS AGAINST THE WEIGHT OF EVIDENCE

In the case of AWUSA VS. NIGERIAN ARMY (2018) LPELR- 44377 (SC), Augie, J.S.C., speaking for the apex Court explained the legal implication of an Appellant complaining that a judgment appealed against is against the weight of evidence on record. His Lordship held at page 47 paragraphs B-E that: The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608 SC. PER BALKISU BELLO ALIYU, J.C.A.

CIRCUMSTANCE WHERE AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDING OF FACT OF THE TRIAL COURT

It is the law and it is trite that an Appellate Court will not lightly interfere with the finding of fact of the trial Court where there is ample credible evidence on record to support that finding. See ADEROUNMU VS. OLOWU (2000) LPELR-141 (SC). PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court, Akure Judicial Division (trial Court) delivered on the 18th November, 2019 in respect of Suit NO: NICN/AK/O5/2019 filed by the Respondent as the Claimant against the Appellants being the Defendants. The said suit was filed vide a writ of summons accompanied with a statement of claim containing the facts that gave rise to the claim. The Respondent was the Commissioner of Local Government and Chieftaincy Affairs and later Attorney General and Commissioner for Justice of Ekiti state, appointed by the Appellants between July 2015 to October 2018 vide letters of appointment to that effect. The appointment was tenured and upon the terms and conditions of service, including salaries and allowances stated in the letters of appointment. The Respondent claimed before the trial Court that all through the tenure of his appointment, the Appellants only kept faith to the monetary terms of the contract half hazardly by not meeting their obligations to him as at when due, which resulted in their owing him the sum of

N5,765, 944.1, being outstanding salaries and allowances due to him by virtue of the appointments. Upon these facts, he prayed the trial Court for the following orders against the Appellants:
1. AN ORDER of this Honourable Court directing the Defendants to immediately/forthwith pay to the Claimant the sum of N5,765,944. 16 (five million, seven hundred and sixty five thousand, nine hundred and forty-four Naira, sixteen Kobo) only being the acknowledged indebtedness of the Defendants to the Claimant
2. AN ORDER of this Honourable Court directing the payment of interests on the acknowledged indebtedness of the sum of N5, 765, 944. 16 at the rate of 21% per annum from 3rd October, 2018 until judgment is given and at the rate of 10% per annum until full and final liquidation
3. ORDER of this Honourable Court directing the payment of the sum of N1,000,000 only being the cost of this action which includes the solicitor’s fees, the cost of filing the action, transportation to and from Ado-Ekiti, Ekiti State and other incidental and sundry expenses.

The Appellants did not deny owing the claimed sums to the Respondent, but their defence

before the lower Court was that he served under previous administration of Ekiti State that owed same accumulated salaries and allowances arrears to other public servants as well, and that none of them have been paid by the Appellants. As such, the Respondent could not be paid in isolation of the others. They also raised a preliminary objection against the jurisdiction of the trial Court to determine the suit.

During the trial, Respondent testified and tendered letters of his appointments, demand letters and other documents in support of his claim. The Appellants equally called one witness in defence of the suit. At the end of the trial, the trial Court dismissed the Appellants’ preliminary objection and entered judgment for the Respondent having found that he proved his case against the Appellants. The learned trial Judge ordered the Appellants to pay Respondent the claimed sums within 30 days from the date of judgment failing which the sums would attract post judgment interest at 10% per annum.

The Appellants were aggrieved by the entire judgment and filed this appeal vide their notice of appeal on 3rd November, 2020, containing three grounds

of appeal, located at pages 120 to 121 of the record of appeal. The Appellants’ brief settled by S. B. J. Bamise Esq., Director of Civil Litigation (DCL) Ministry of Justice Ekiti State was filed on the 31st December, 2020, but deemed properly filed and served on the 28th January, 2021. The learned DCL distilled three issues for determination from the grounds of appeal as follows:
1. “Whether the action of the Respondent via her letter dated 3rd of October, 2018 transferring the burden of payment of debt owed to her to the 3rd Appellant when in actual fact she was officially responsible for making available and ensuring such payment to herself at that time is not a waiver of such entitlement to the Respondent. (Ground 1 of the Appellants’ grounds of appeal).
2. Whether the Preliminary objection raised by the Appellant at the lower Court lacks merit.
3. Whether the judgment of the lower Court is not against the weight of the evidence.”

In opposing the appeal, the Respondent appearing in person filed his brief of argument on the 21st January, 2021 deemed properly filed and served by the order of this Court made on the 28th

January, 2021. He identified the following issues for the determination of this appeal:
1. Whether the lower Court was right in finding in favour of the Respondent in view of the facts and circumstances of this case.
2. Whether the lower Court was right in holding that the Respondent has a cause of action in this case notwithstanding the preliminary objection of the Appellants.
3. Whether the judgment of the lower Court is against the weight of evidence.

The appeal came up for hearing on the 28th January, 2021 and counsel on both sides adopted the parties’ briefs of argument. The Appellants’ learned DCL urged the Court to allow the appeal and set aside the judgment of the trial Court, but the Respondent urged us to dismiss the appeal in its entirety and affirm the judgment of the trial Court.

It is observed that the issues for determination raised by the parties are same save for language style. As such I adopt the Appellants’ three issues as my guide for the determination of this appeal for the simple reason that they are the undoubted owners of the appeal. The submissions of the parties in support and opposition on the issues are considered below.

APPELLANTS’ SUBMISSIONS
In arguing issue one, the learned DCL pointed out that the judgment of the trial Court to the effect that the 3rd Appellant (Ekiti State Government) is indebted to the Respondent was premised on the fact that the Appellants admitted their indebtedness, without the trial Court considering how the said indebtedness came to be. He submitted that the trial Court failed to take into consideration that the letter of 3rd October, 2018 (exhibit LP3) was issued to the Respondent while he was still in office as a commissioner of the 3rd Appellant. As such, the learned DCL submitted that the Respondent “was saddled with the responsibility and (was) under legal obligation to ensure the payment of the sums outstanding to him while in office but chose to transfer such responsibility to the 3rd Appellant to pay her (him?) after leaving office even when the Respondent was fully aware of the inability of the 3rd Appellant to pay such at any time.” He contended that this action of the Respondent indicated that he waived his right to receiving such payment from the Appellant and the learned

DCL referred us to the decision of this Court in the case of NIGERIA PORTS AUTHORITY VS. DUNCAN MARITIME VENTURES (NIG.) LTD (2010) LPELR-4602 (CA), where this Court defined the legal concept of waiver as “intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted upon.” That, the Respondent having been one of the alter egos of the 3rd Appellant cannot remove himself from the cause of the debt being claimed having been part of the structure that incurred the debt, he cannot benefit from his own wrong.

It was his further submissions that assuming the Appellants indeed admitted their indebtedness to the Respondent, Exhibit LP3, upon which his case rested before the lower Court was not admissible evidence because it was not tendered by its maker, the erstwhile Secretary to the 3rd Appellant, who is the only proper person to be cross-examined on it. That the DW1 who was cross-examined on Exhibit LP3 was not the maker and therefore her evidence on it amounted to hearsay evidence. He placed reliance on Section 83(1) and (2) of the Evidence Act 2011 and the cases of

OKEREKE VS. UMAHI (2016) ALL FWLR (PT. 833) 125, BELGORE VS. AHMED (2013) 8 NWLR (PT. 1355) 60 and others in support of his submissions.

On issue two, the learned DCL defined ‘cause of action’ and submitted that from the affidavit in support of the Appellants’ preliminary objection located in pages 36-37 of the record of appeal, it was shown that they (Appellants) committed no wrongful act against the Respondent because the salaries and allowances outstanding to him has not been paid to any of the public officers that the Appellants equally owed the same arrears of salaries and allowances. He argued that the Respondent is only using this suit to harass the Appellant when it is common knowledge that no other public servant has received the arrears of salaries owed to them. That, since the Respondent said he served the State, he should not expect to benefit at the expense of the people he claimed to have served. He further submitted that cause of action would only arise when and if the Appellants neglect to pay the Respondent’s outstanding salaries when others were paid. We were urged to hold that the action of the Respondent is

pre-emptive, speculative, frivolous and vexatious.

With regards to their issue three, the Appellants submitted that the trial Court did not properly evaluate the credible affidavit evidence before arriving at its decision entering judgment in favour of the Respondent. The learned DCL argued that in view of the credible evidence before the lower Court, it ought to have dismissed the Respondent’s suit. He relied on the cases of LAWAL VS. ADEBAYO (2010) 5 WRN 128 and DARAMOLA & ORS. VS. ATTORNEY-GENERAL ONDO STATE & ORS (2000) 14 120, to urge the Court to allow the appeal and to set aside the judgment of the trial Court.

RESPONDENT’S SUBMISSIONS
On issue one, the Respondent submitted that through all the pleadings and evidence called, the Appellants never in any manner denied its indebtedness to the Respondent on the sums claimed. Their only defence was that his claims/case was premature since the same debt of outstanding salaries and allowances has not been paid to other workers. He submitted that the trial Court was therefore right to enter judgment for the Respondent.

On the Appellants’ argument of waiver and the

propriety of Exhibit LP3 written by the Appellants, the Respondent submitted that the issue of waiver was never raised before the trial Court and the Appellants cannot raise that issue in this appeal without leave, being a fresh issue. He submitted that even assuming that the issue of waiver can be raised before this Court, Exhibits LP1 and LP2 (pages 13 and 14 of the record) showed that the Respondent was a mere employee of the Appellants and has no capacity to have paid himself as contended by the Appellants. That, the Appellants having admitted that the Respondent was their employee, it is inconceivable for them to claim that the burden of payment of salaries and allowances was transferred to the 3rd Appellant by the Respondent. The fact remained that the 3rd Appellant is and has always been the main debtor having employed the Respondent. He submitted that the cases of NPA Vs. Duncan Maritime Ventures Nig. Ltd (supra) and others cited by the Appellants are irrelevant to this case and should be discountenanced.

On the argument of the Appellants against Exhibit LP3, the letter it wrote to Respondent admitting its indebtedness, the Respondent submitted

that the Appellants’ witness admitted that Exhibit LP3 was written by them, it was also relevant and tendered and admitted in evidence without any objection and it was a public document within the meaning of Section 146(1) of the Evidence Act. He argued further that apart from the fact that by Exhibit LP3, the Appellants admitted their indebtedness to him, thus requiring no proof, the exhibit has also satisfied all the factors to be considered in ascribing probative value to a piece of evidence as enunciated in the case of OKADIGBO & ORS. VS. OJECHI & ORS (2011) LPELR-4687 and others.

On the claim of the Appellants vide evidence of DW1 to the effect that Respondent’s claim was pre-mature since his unpaid salaries and allowances cannot be paid in isolation or to the exclusion of others who were also being owed same, the Respondent submitted that he left office about 27 months ago when in fact salaries are due and payable at the end of every month. He argued that payment of his salaries and allowances was not made contingent upon payments of any other worker(s) or employees of the Appellants. He submitted that the trial Court was

therefore right in holding that the Respondent proved his case against the Appellants on the balance of probabilities vide credible evidence he called and despite the fact that his claims were not denied.

On issue two, Respondent adopted the definition of ‘cause of action’ as defined by this Court in BELLO & ORS. VS. A. G. OYO STATE & ORS. (supra), cited by the Appellants and he submitted that the reliefs sought in this case and the facts pleaded in his statement of claim showed that he has a cause of action for which he is entitled to approach the Court for remedy as rightly found by the trial Court. On this ground, the Appellants’ preliminary objection was frivolous and baseless and the lower Court was right to so hold and he urged this Court to uphold same.

In response to the contention of the Appellants that this suit is speculative, pre-emptive, vexatious and frivolous, the Respondent submitted that having disclosed a cause of action vide his pleadings and reliefs sought, the defence of the Appellants is bound to fail. That, the Respondent having served as commissioner in Ekiti State by virtue of which he is entitled to

salaries and other allowances, which the Appellants failed to pay him since 2018 when he left office, prima facie disclosed that he has a right to enforce for redress in Courts. He cited for support the cases of AFRIBANK NIG. PLC VS. OSISANYA (2000) 1 NWLR (PT. 642) 599, LUTH VS. ADEWALE (1998) 5 NWLR (PT. 550) 406 and EMIKO VS. NNPC (2012) LPELR-19667) (CA).

In arguing issue three, the Respondent submitted that he pleaded and called credible evidence in support of his claims while the Appellants did not deny his claims but merely argued that the debt was not due for payment. That the lower Court found that the relationship of master/servant between the parties no longer existed since his tenure expired since 2018, it was right to enter judgment for the Respondent especially on the trite position of the law that what was admitted needed no further proof. He argued that even the cases of Lawal Vs. Adebayo (supra) and Daramola & Ors. Vs. A.G. Ondo State & Ors. (supra) cited by the Appellants supported the Respondent’s case and are clearly against the Appellants. Conclusively, the Respondent urged us to dismiss this appeal with substantial

cost and affirm the judgment of the trial Court.

RESOLUSION
ISSUE ONE
By their issue one, the Appellants’ contention before us is that the Respondent was issued with the letter dated 3rd October, 2018 Exhibit LP3 while he was still a commissioner and that “he was saddled with the responsibility and under legal obligation to ensure the payment of his salaries and allowances that was owed to him, but he chose to transfer the burden of payment of debt to the 3rd Appellant.” It was contended that by so acting, he has waived his entitlement to the payment of his outstanding salaries and allowances. They complained that the trial Court did not take into consideration the “propriety behind the issuance of the letter” because it was issued to the Respondent while he was still serving as the commissioner of the Appellants. Two questions arise from the complaint of the Appellants under this issue; was the Respondent responsible for the payment of his outstanding salaries and allowances and secondly, did he waive his right to the payment of such.

It is important at this juncture to examine Exhibit LP3, being documentary

evidence, this Court as an Appellate Court is in as good a position as the trial Court to so do, since such examination will not involve the credibility of witnesses, vide the case of N. P. A. VS. DUNCAN MARITIME NIG. LTD (supra) cited by the Appellants.

It is also trite that documentary evidence always serves as a hanger by which to assess and verify the credibility of oral evidence. See SHUAIBU VS. MUAZU (2014) 8 NWLR (PT. 1409) 201. The contents of Exhibit LP3 is reproduced below:
“LETTER OF INDEBTEDNESS OF EKITI STATE GOVERNMENT TO 2014-2018 ELIGIBLE POLITICAL APPOINTEES
1. In accordance with the report of the Revised Remuneration Package for Political, Public and Judicial Office Holders Vol. 1 of the Revenue Mobilization & Fiscal Commission (2007), a Political Office Holder is entitled to 300% of his basic annual salary as Severance and Furniture allowances at the successful completion of his/her tenure.
2. In the light of the parlous state of the economy of the State Government, it is impossible to pay these allowances to the 2014-2018 eligible Political Appointees. In the same vein four and half (41/2) months salaries are

equally outstanding.
3. Consequently, the Executive Council of the State has approved that all the eligible 2014-2018 political office holders be formally informed about the indebtedness of the State Government to them (Copy of Exco conclusion extract here with attached).
4. Therefore, your outstanding entitlements are as stated below:
a. Severance allowance due 4, 011, 675.12
b. Outstanding Furniture Allowance 2,011, 675.12
c. Outstanding salaries (June-Oct. 15th 2018) 1, 742, 594. 04
5. Executive Council has also approved that the outstanding debt on your monetized vehicles, a sum of N2,000,000.00 be deducted from your total outstanding allowances.
6. Consequently, your total outstanding allowances is (sic) 5, 765, 944. 16.
7. Wishing you the best in your future endeavours.
Signed
Dr. Modupe Alade
Secretary to the State Government.”

The above reproduced letter was admitted in evidence as Exhibit LP3 through the Respondent (CW1) without any objection from the Appellants as shown in the proceedings of the trial Court in pages 110 to 114 of the record of appeal. It was addressed to the

Respondent and signed by Dr. Modupe Alade, the Secretary to the Ekiti State.

I have also examined the evidence of the Respondent as CW1 on record and that of Appellants’ DW1 copied on pages 115 to 118, particularly under cross-examination. The Respondent stated under cross-examination that the Appellants informed him in Exhibit LP3 that the total outstanding money they owed him was N5,765,944.16, which was not paid to him and that was the reason why he was in Court. He also stated under cross-examination that; “by 15/10/19, I will be one year out of office.”

The evidence of DW1 under cross-examination is copied at page 117 of the record of appeal and she stated thus:
I am aware that you worked as Attorney-General of Ekiti State and also as Commissioner for Local Government although I did not have personal contact with you while in office. In Exhibit LP3, is a document which emanated from my department. Since the inception of this new government, the government has stayed 9 months in office and they have paid 9 months salary and 1 month arrears, making a total of 10 months paid. The salaries paid include that of June and

October, 2018. It is correct that you (claimant) left office on 15th October, 2018. In other words, you worked for the month of June, 2018 and a fraction of October 2018. I confirm that you (claimant) left office on the 15th October, 2018. I confirm that you (claimant) worked for the month of July, August and September, 2018 and you are entitled to salaries for those months. I am surprised to hear you (claimant) have not been paid. Exhibit LP3 was signed on the authority of SEC by the former SSG. I don’t know whether Exhibit LP3 ought to have been implemented.

The evidence on record showed that the Respondent was not responsible for paying himself his salaries and allowances, rather the Appellants through SEC was responsible, as per paragraphs 3 and 5 of the Exhibit LP3 supra supported by evidence of the Appellants’ officer (DW1) who actually expressed surprise to learn that the Respondent has not been paid his outstanding salaries and allowances. Secondly, there was no evidence on record that indicated Respondent waived his right to the payment of the outstanding salaries and allowances from the Appellants. In fact, the contrary is the case in

view of the letters of demand he sent to the Appellants and subsequent filing of this suit.

Therefore, the record does not support the argument of the Appellants on that claim and it is hereby disregarded. Equally, the Appellants did not refer us to any evidence on record showing that the Respondent was in any way responsible to pay himself salary while working for the Appellants as they argued in paragraph 4.02 of their brief, to the resultant effect that the argument goes to no issue and it is discountenanced.

The Appellants also complained against the admissibility of Exhibit LP3 supra on the ground that the maker was not called to tender same and to be cross-examined on it, which same argument was canvassed before the trial Court and was dismissed. From the evidence on record, that Exhibit LP3 was written to the Respondent by the Appellants and it was from his custody that he tendered it in evidence. No doubt it is a public document having emanated from the Appellants but it is in its original form sent to the Respondent, which he tendered from his custody. It needed not be certified before it could be admitted in evidence and equally, having

been the addressee, the Respondent was competent to tender it in evidence. He has knowledge of its content since it concerns him personally and he can answer any questions regarding its contents.

Moreover, the Respondent was cross-examined on the document (Exhibit LP3) and the Appellants’ DW1 confirmed that the exhibit was written from her office and sent to the Respondent. See her evidence under cross-examination (supra). Thus the document having been admitted by the Appellants needed no further proof of its origin. See Section 75 of the Evidence Act 2011 and the case of KAYILI VS. YILBUK & ORS. (2015) NWLR (PT. 1457) SC. The learned trial Judge was therefore in order to admit the Exhibit LP3 and rely on it in reaching his decision because it was admissible evidence and relevant to the fact in issue. I agree and uphold the decision of the learned trial Judge on the admissibility of Exhibit LP3 as a consequent of which issue one must be resolved against the Appellants and it is so resolved against them.

ISSUE TWO
This issue is whether the preliminary objection raised by the Appellants at the lower Court lacks merit.

The complaint of the Appellants under this issue is that the Respondent’s suit did not disclose any cause of action and that its cause of action is premature, pre-emptive, speculative and frivolous. There is a bit of a conflict in the two complaints because while the Appellants first argued that the Appellants did not commit any wrongful act against the Respondent, but also argued that because the outstanding salaries and allowances owed to him were also owed to other persons none of which was paid to his exclusion. The Appellants are saying that they owed the Respondent the claimed sums, but they also owed others and they have not paid anyone.

I examined the record and I find that in the trial Court’s judgment, the learned trial Judge correctly examined the statement of claim from which he found that the Respondent’s case was that he served as the commissioner of the Appellants from 2015 to 15th October, 2018 when he left office at which time he was owed salaries and entitlements in the sum of N5, 765, 944. 16. That, the Appellants acknowledged their indebtedness to the Respondent and he sent two letters of demand for payment of the debt, which was

ignored. Based on the facts averred by the Respondent, the trial Court held that the Respondent has a cause of action in view of the expiration of his employment and the letter of the Appellants of 3rd October 2010, thus he has a cause to seek redress from Courts against the Appellants.

I have also perused the statement of claim of the Respondent and his evidence before the trial Court. It was not contested or denied that the Respondent served the Appellants as the commissioner in the relevant period. In my determination of issue one supra, I found that the Appellants vide their DW1 confirmed this fact. It was also not in dispute that the Appellants owed the Respondent the sums of money claimed vide their own admission in Exhibit LP3 confirmed by their own officer DW1 before the trial Court. In particular, I note the expression of surprise by DW1 under cross- examination when she stated clearly at page 117 of the record that; “I am surprised to hear you (claimant) have not been paid.” This statement of the DW1 followed her earlier testimony that the new administration had, by the date she was testifying (10th July, 2019) paid 10 months salaries

and one month’s arrears to its other workers. This fact completely disproved the claim of the Appellants of having not paid any other person owed salaries and allowances based upon which they claimed the cause of action of the Respondent was premature or pre-emptive.

There was no evidence on record showing that the Appellants set a timeline within which they intended to settle the debt they owed the Respondent for them to advance this argument. It is for this reason that I am in complete agreement with the learned trial Judge that the preliminary objection of the Appellants was baseless and lacked any iota of merit. There is nothing new shown to us to fault that decision of the trial Court which was on strong wicket. I therefore enter an affirmative answer to issue two and resolve it against the Appellants.

ISSUE THREE
In this issue, the Appellants complained that the judgment of the lower Court is against the weight of the evidence led before it. In the case of AWUSA VS. NIGERIAN ARMY (2018) LPELR- 44377 (SC), Augie, J.S.C., speaking for the apex Court explained the legal implication of an Appellant complaining that a judgment appealed

against is against the weight of evidence on record. His Lordship held at page 47 paragraphs B-E that:
The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608 SC.

With the guidance of the Supreme Court supra, the evidence called by the Appellants before the trial Court through their DW1 has already been examined and even reproduced in the course of my resolution of issue one supra. The Appellants admitted owing the Respondent salaries and allowances unpaid for several months after leaving office and after demand letters written and sent to them to pay up their debt. Their only defence as rightly pointed out by the Respondent is

that other persons whom they owed have also not been paid. It cannot be a valid defence for a debtor owing several persons to say one of them cannot legitimately demand payment simply because other debtors have also not been paid. The Appellants in relying on this defence seemingly contended that as long as no other creditor is paid, there cannot be a cause of complaint for any of them against them. This is preposterous and wrongful and no Court of justice will adhere to, not to talk of upholding that absurd argument. I discountenance it without much ado.

Upon my perusal of the evidence placed before the trial Court, I found as a fact that indeed the Appellants’ evidence vide DW1 supports the Respondent’s case in all material facts. I found that the evidence called by the Respondent before the trial Court was credible and the trial Court was on a strong legal ground to accept it in preference to the evidence of the Appellants to arrive at its finding of facts. It is the law and it is trite that an Appellate Court will not lightly interfere with the finding of fact of the trial Court where there is ample credible evidence on record to support

that finding. See ADEROUNMU VS. OLOWU (2000) LPELR-141 (SC). As a consequence, it is my view that the judgment of the trial Court was amply supported by the evidence on record from both parties and this issue must therefore be resolved against the Appellants and it is so resolved against them.

Having resolved all the three issues against the Appellants, it means that this appeal is totally devoid of merit and it deserves a dismissal. I dismiss it. I affirm the judgment of the trial Court delivered on the 18th November, 2019 in respect of Suit NO: NICN/AK/O5/2019. Cost of N100,000 (one hundred thousand Naira only) awarded to the Respondent against the Appellants.

This judgment was scheduled to be delivered on the 19th April, 2021, but the workers of the judiciary in Nigeria under the umbrella of their union, JUSUN embarked on a Nationwide strike that resulted in locking up of all Court’s premises including our own. Thus we could not deliver it before today. We had to resort to electronic means (Zoom) to deliver it today to avoid further delay since our Court’s premises are still under lock.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Aliyu, J.C.A, and I entirely agree with her reasoning and conclusion therein as there was a clear admission of the indebtedness on the part of the Appellants. I too dismiss this appeal and abide by the cost awarded in the leading judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.

Appearances:

B. J. BAMISE, ESQ. For Appellant(s)

KOLAPO KOLADE, ESQ. For Respondent(s)