MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA & ORS v. ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU) (2014)

MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA & ORS v. ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU)

(2014)LCN/6972(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of March, 2014

CA/YL/36/2012

RATIO

WHEN INTEREST IS SAID TO BE ESTABLISHED

A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like, connected with the thing, whether present or future, ascertained or potential provided that the connection and in the case of potential rights and duties, the possibility is not too remote. See:- IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (SUPRA). Per OLUKAYODE BADA, J.C.A.

WHETHER UNCHALLENGED AND UNCONTRADICTED FACTS IN AN AFFIDAVIT ARE DEEMED ADMITTED

The law is trite that facts in an affidavit not challenged, not contradicted and not controverted by a party are deemed to be admitted by him unless such facts on the face of them will lead to absurdity if accepted as being the truth of what they try to establish. The Supreme Court in -BADEJO VS. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 AT 42 PARAGRAPHS E-F held as follows:-

“It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts, and the other party does not file a counter-affidavit or a reply to the counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. In the instant case, those paragraphs which disclosed that the interview for admission into Federal Government college had already taken were not denied. They are therefore deemed admitted”.

See also:-

– ALAGBE VS. ABIMBOLA (1978) 2 S. C. PAGE 39.

– BUHARI VS. OBASANJO (2003) 17 NWLR PART 850 PAGE 587 AT 657.

– MAISAJE VS. HASSAN (2004) 11 NWLR PART 883 PAGE 181.

– OFORLETE VS. STATE (2000) 12 NWLR PART 681 PAGE 415.

– OLORUNFEMI VS. ASHO (2000) 12 NWLR PART 643 PAGE 143.

– EZEANAH VS. ATTAH (2004) 7 NWLR PART 873 PAGE 648.

– LONG-JOHN VS. BLACK (1996) 6 NWLR PART 555 PAGE 524.

It is also important to take note of the fact that facts deposed to in an affidavit are evidence themselves and differ from averments in pleadings. In MAGNUSSON VS. KOIKI (1993) 9 NWLR PART 317 PAGE 287 AT 297 PARAGRAPHS A-B. Kutigi JSC held thus:-

“Affidavit evidence upon which application or motions are largely decided are not the same thing as pleadings in civil suit which are written statements (and not evidence) generally of facts relied upon by a party to establish his case is thus: answer to his opponent’s case…… unlike pleadings which will have to be supported by evidence at the trial as stated earlier”.

See:- NIGERIAN NAVY VS GARNICK (2006) 4 NWLR PART 969 AT PAGE 69 AT 112-113 PARAGRAPH G-H. Per OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

1. MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA
2. THE COUNCIL, MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA
3. AHMED USMAN W/CHEKKE Appellant(s)

AND

ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU) Respondent(s)

OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Yola, Adamawa State in SUIT NO: FHC/YL/CS/53/2011 -ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU) VS. MODIBBO ADAMA UNIVERSITY OF TECHNOLOGY, YOLA & 2 OTHERS delivered on 14th day of May, 2012.

Briefly the facts of the case are that the Respondent who was the Plaintiff at the lower court by an Originating Summons commenced an action in which it sought inter alia the following reliefs against the Appellants as Defendants:-

“1. A declaration that the purported approval of the 1st and 2nd Defendants (now Appellants) for the 3rd Defendant (now 3rd Appellant) to retire at the end of his tenure as Registrar on the 31st July, 2012 amounts to either a renewal of appointment, reappointment or elongation of retirement age of the 3rd Defendant contrary to Rule 020810 (i)(ii) of the Public Service Rules 2008 Edition and therefore illegal, null and void.

2. A declaration that the purported approval of appointment, reappointment or elongation of retirement age of the 3rd Defendant by the 1st and 2nd Defendants to retire at the end of his tenure as Registrar of the 1st Defendant on the 31st July, 2012 when he ought to have retired in September, 2010 being when he attained the 35 years mandatory period is in contravention of Rules 020206 and 020810(i)(ii) of the Public Service Rules 2008 Edition and therefore illegal, null and void.

3. A declaration that by virtue of paragraph 8(2) of the 1st schedule to the Federal University of Technology Act (Cap F23) Laws of the Federation of Nigeria, 2004 read together with Federal Government Circular with Reference Number HCSF/EMS/GR/B.63694/N/T.2/96 dated 27/7/2009 and Rule 020206 and 020810 of the Public Service Rules 2008 Edition, the 3rd Defendant is not qualified for appointment, reappointment and renewal of appointment.

4. An order of court setting aside the purported approval of the 1st and 2nd Defendants for the 3rd Defendant to retire on the 31st July, 2012.

5. An order of court directing the third Defendant to refund to the 1st Defendant all monies received as salaries, allowances or however called from October, 2010 till date.

6. An order of court directing the 1st and 2nd Defendants to appoint a registrar for the 1st Defendant.

7. Any other order as the Justice of this case may demand”.

At the conclusion of hearing, Judgment was delivered in favour of the Respondent.

The Appellants who were dissatisfied with the said Judgment now appealed to this court.

The learned Counsel for the Appellants formulated two issues for determination.

The issues are set out as follows:-

ISSUE NO: 1

Whether the Respondent in this matter has disclosed any interest at all or sufficient interest in the subject matter of litigation to maintain the suit before the trial court (Distilled from Ground 2 of the Grounds of Appeal).

ISSUE NO: 2

Whether there is any justifiable basis on which the court found that the 2nd Appellant’s approval for the 3rd Appellant to retire at the end of his tenure as Registrar on 31st day of July, 2012 is unlawful and granted the reliefs that were granted to the Respondent in this matter (Distilled from Grounds 1, 3, 4 and 5 of the Grounds of Appeal).

The learned Counsel for the Respondent in his own case formulated two issues for determination, the issues are reproduced as follows:-

ISSUES NO: 1

Whether the Respondent had the locus standi to maintain the action as constituted before the trial court (Distilled from Ground 2 of the Appellant’s ground of Appeal).

ISSUE NO: 2

Whether the trial court was right in upholding the Respondent’s claim and granting the reliefs sought (Distilled from Grounds 1, 3, 4 and 5 of the Appellant’s Grounds of Appeal).

At the hearing, learned Counsel for the Appellants referred to the Appellants’ Brief of Argument filed on 29/8/2012. He adopted the Appellants’ Brief as his argument in urging that the appeal be allowed.

On the other hand, the learned Counsel for the Respondent referred to the Respondent’s Brief of Argument filed on 26/11/2013 but deemed properly filed and served on 13/1/2014. He adopted the said Respondent’s Brief of Argument as his argument in urging that the appeal be dismissed.

The issues formulated by learned Counsel for the parties are similar, however the issues formulated on behalf of the Appellants are considered relevant and apt in the determination of this appeal. I will therefore rely on the said issues.

ISSUE NO: 1

Whether the Respondent in this matter has disclosed any interest at all or sufficient interest in the subject matter of litigation to maintain the suit before the trial court. (Distilled from Ground 2 of the Grounds of Appeal).

The learned Counsel for the Appellants submitted that the Respondent has not disclosed any interest at all or sufficient interest in the subject matter of litigation to be entitled to bring this action before the trial court. He argued that Section 6 (6) (b) of the 1999 constitution is the Section of the law which generally empowers the court to adjudicate when a person with a grievance comes before the court. He relied on the following cases:-

– NWONU VS. ADMINISTRATOR GENERAL (1991) 3 NWLR PART 173 PAGE 343 AT 356.

– NIB INVESTMENTS VS. OMISORE (2006) 3 NWLR PART 969 PAGE 172 AT 195.

– ELENDU VS. EKWABA (1995) 3 NWLR PART 386 PAGE 704 AT 750 -751 PARAGRAPHS G -B.

– ADESANYA VS. THE PRESIDENT (1981) NSCC PAGE 146 AT 147.

– FAWEHINMI VS. I. G. P (2002) 7 NWLR PART 767 AT 606.

It was submitted further that the Plaintiff/Respondent cannot derive a right of action from Section 6(6) (b) of the 1999 Constitution or any other law to institute this action, Section 6(6) (b) of the 1999 Constitution (As amended) allows only individuals with genuine interest in the subject matter of litigation to maintain action before courts of law to protect such interest, an individual must therefore show that he has the requisite locus standi before such a person can maintain an action.

He relied on the following cases:-

– NNPC VS. FAWEHINMI (1998) 7 NWLR PART 559 PAGE 598 AT 612.

– ADETONA VS. ZENITH INTERNATIONAL BANK PLC (2011) 18 NWLR PART 1279 PAGE 627 AT 648 PARAGRAPH F-G.

– IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (2001) 6 NWLR PART 709 PAGE 478.

– EREGBOWA VS. OBANOR (2010) 16 NWLR PART 1218 PAGE 33 AT 56 PARAGRAPHS E-G.

It was submitted further on behalf of the Appellants that there was nothing before the trial court showing that any interest of the Respondent has been infringed upon in any way or is in danger of being infringed upon. Indeed there is no direct connection between the Respondent and the subject matter of litigation. It was also argued that this case was not commenced before the trial court in representative capacity.
The learned Counsel for the Appellants finally submitted that where a Plaintiff lacks the requisite standing to sue, the court has no jurisdiction to entertain such action and as such the proceedings ought to be set aside as a nullity.

The learned Counsel for the Respondent in his own submission stated that it is not in dispute that the Respondent is a juristic person having the right to sue or be sued as it was not in contention in view of Exhibit “FA” on page 64 of the Record of Appeal. He stated that the Respondent represents the interest of Academic Staff Members of the 1st Appellant. He referred to the Plaintiff/Appellant’s affidavit in support of the Originating Summons and Exhibit “D” annexed on pages 7, 8, 9 and 16 as well as its further and better affidavit and Exhibit “FA1” on pages 62, 63 and 64 of the record of proceedings.

Learned Counsel also referred to paragraphs 5, 6, 7, 8, 9, 10 and 11 of the further and better affidavit which he said were not contradicted. It was also argued that failure to obtain leave to sue in representative capacity is not fatal to the action.

He referred to the case of:- MOZIE VS. MBAMALU (2006) ALL FWLR PART 341 PAGE 1200 AT 1218 -1219 PARAGRAPHS A-D.

He urged that this issue be resolved in favour of the Respondent.

The contention of the learned Counsel for the Appellants is that the Respondent did not disclose any interest in the subject matter of litigation to maintain the suit before the trial court.

A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like, connected with the thing, whether present or future, ascertained or potential provided that the connection and in the case of potential rights and duties, the possibility is not too remote. See:- IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (SUPRA).

The Respondent is a juristic person having a right to sue and be sued in view of the Certificate of Registration of Trade Union which showed that the Respondent was registered. See Exhibit FA1 on page 64 of the record of appeal.

The contention of the learned Counsel for the Respondent is that the Respondent represents the interest of the Academic Staff members of the 1st Appellant as it relates to the suit before the trial court. At this juncture, recourse will have to be made to the Respondent’s further and better affidavit in support of the Originating Summons at the lower court particularly paragraphs 6, 7, 8 and 10 reproduced as follows:-

“6. That members of the Plaintiff in the service of the 1st Defendant can be appointed as Registrar of the 1st Defendant upon the position being vacant.

7. That there are members of the Plaintiff who are presently desirous of being appointed Registrar of the 1st Defendant upon the position being vacant.

8. That the failure of the 3rd Defendant to retire when he should and the elongation of his retirement by the 1st and 2nd Defendants has made it impossible for any member of the Plaintiff to be appointed upon meeting the requisite qualification.

10. That the Plaintiff is a union under or through which some staff members of the 1st Defendant express their grievances and also pursue their cause”.

As could be readily seen from the counter affidavit filed on behalf of the Appellants at the lower court, the averments set out above were not controverted.

See also:-
– ALAGBE VS. ABIMBOLA (1978) 2 S. C. PAGE 39.

– BUHARI VS. OBASANJO (2003) 17 NWLR PART 850 PAGE 587 AT 657.

– MAISAJE VS. HASSAN (2004) 11 NWLR PART 883 PAGE 181.

– OFORLETE VS. STATE (2000) 12 NWLR PART 681 PAGE 415.

– OLORUNFEMI VS. ASHO (2000) 12 NWLR PART 643 PAGE 143.

– EZEANAH VS. ATTAH (2004) 7 NWLR PART 873 PAGE 648.

– LONG-JOHN VS. BLACK (1996) 6 NWLR PART 555 PAGE 524.

It is also important to take note of the fact that facts deposed to in an affidavit are evidence themselves and differ from averments in pleadings. In MAGNUSSON VS. KOIKI (1993) 9 NWLR PART 317 PAGE 287 AT 297 PARAGRAPHS A-B. Kutigi JSC held thus:-

See:- NIGERIAN NAVY VS GARNICK (2006) 4 NWLR PART 969 AT PAGE 69 AT 112-113 PARAGRAPH G-H.

Also in another related case of:- AGBAKOBA VS. INEC (2008) 18 NWLR PART 1119 PAGE 489 AT 549, the Supreme Court stated thus:-

“In actions initiated by Originating Summons, the affidavits filed by the parties in the matter take the place of pleadings and so any material paragraphs of the affidavit not specifically denied are taken as having been admitted, that is an unchallenged evidence upon which the court could act. As in pleading, the denial must not be evasive but frontal”

All that I am trying to bring out is that where a party fails to challenge a material paragraph in an affidavit through a counter affidavit or he fails to file a counter affidavit, he would be deemed to have admitted the unchallenged facts in the said affidavit.

The learned Counsel for the Appellants relied on Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in contending that the Respondent did not disclose any interest in the subject matter of the litigation before the lower court. But the said Section 6(6)(b) (supra) does not directly deal with the right of access of individuals to the court. The main objective of Section 6 is to leave no doubt as to the definition and delimitation of boundaries of the separation of powers between the Judiciary on one hand and the organs of government on the other. The said Section is primarily and basically designed to describe the nature and extent of judicial powers vested in the courts. It is not intended to be a catch-all, all-purpose provision to be pressed into service for determination of questions ranging from locus standi to the most uncontroversial questions of jurisdiction. See: NNPC VS. FAWEHINMI (SUPRA).

It was contended on behalf of the Appellants that the action before the lower court was not commenced in representative capacity by the Respondent and further that even if leave to sue in representative capacity had been sought the Respondent is not entitled to it.

In the instant appeal, the Respondent had the permission of those it represents to sue. Although the Respondent cannot hold the office of Registrar but its members can hold that office, the fact that leave to sue in representative capacity was not obtained is not fatal to the Respondent’s case because it is a rule of convenience in the administration of Justice.

In WIRI VS. WUCHE (1980) 1-2 S.C. PAGE 1. The Supreme Court held among others that:-

“The attitude this court adopts in matters of this nature is not a rigid one. It depends on the fact and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent. This court does not and will not upset a Judgment of the lower court merely on a bare objection of failure to obtain the approval of the court”.

See also: MOZIE VS. MBAMALU (2006) ALL FWLR PART 341 PAGE 1200 AT 1218-1219 PARAGRAPHS A-D.

In another related case of -SHELL PETROLEUM DEVELOPMENT COMPANY NIG. LTD VS. CHIEF TIGBARA EDAMKUE (2009) ALL FWLR PART 489 PAGE 407 AT 432 PARAGRAPH D. The Supreme Court held among others that:-

“It is not in every representative action that express authority of the persons represented should be obtained or even more so is the approval of the court be obtained. A representative action could be implied from the circumstances surrounding the action”.

Consequent upon the foregoing, and in view of the unchallenged and uncontroverted paragraphs of the further and better affidavit filed by the Respondent at the lower court, and which was set out earlier in this Judgment, the Respondent has established its interest and that of its members in the subject matter of litigation to maintain this suit before the lower court. Furthermore based on the fact that the Respondent -a registered member of the Trade Unions who by virtue of the provisions of Sections 17 and 18 of the Trade Union Act Cap 714 Laws of the Federation of Nigeria makes remittance to the Federation of Trade Unions by way of dues, which money is used in maintaining Public Offices, then it is not logical to say that the Respondent does not have interest in how the money is spent.

This issue is therefore resolved in favour of the Respondent and against the Appellants.

ISSUE NO: 2

Whether there is any justifiable basis on which the court found that the 2nd Appellant’s approval for the 3rd Appellant to retire at the end of his tenure as Registrar on 31st July, 2012 is unlawful and granted the reliefs that were granted to the Respondent in this matter. (Distilled from Grounds 1, 3, 4 and 5 of the Grounds of Appeal).

Learned Counsel for the Appellants submitted that the lower court erred when it decided that the approval of the 2nd Appellant for the 3rd Appellant to retire at the end of his tenure in July, 2012 is unlawful and granted the reliefs that were granted the Respondent in this matter. He submitted that he who alleges must prove and the onus is always on the Plaintiff to make out a case before a Defendant would be obliged to respond to such a case. He relied on -NEWBREED VS. ERHOMOSELE (2006) 2 SCNJ PAGE 198 AT 215.

He argued that the Respondent had the onus of satisfying the trial court that the Appellants had engaged in some unlawful or illegal activity to warrant the intervention of the court. It was also stated that it was not in dispute that the tenure of appointment of the 3rd Defendant as Registrar of the 1st Defendant will come to an end by July, 2012, and that it is uncontroverted.
He relied on:-

– EKEDIGWE VS. FAI (2012) 10 NWLR PART 1308 PAGE 375 AT 406.

– OMO VS. JUDICIAL SERVICE COMMISSION (2000) 7 SCNJ PAGE 17 AT 32 TO 34.

– OFORLETE VS. THE STATE (2000) 7 SCNJ PAGE 162 AT 183.

The learned Counsel for the Appellants submitted that the Respondent did not challenge the appointment of the 3rd Appellant in the first place, there is therefore no reason why the 3rd Appellant should not complete his tenure as Registrar of the 1st Appellant in accordance with his unchallenged appointment. He referred to the counter affidavit of the 3rd Appellant at pages 115 to 116 of the record of appeal particularly paragraph 4 where it was stated that:-

“(a) That he is currently serving his second term as Registrar of the 1st Defendant.

(b) That his said term as Registrar will expire by 31st July, 2012”.

He submitted that by paragraph 7(3) of the 1st schedule to the Federal University of Technology Act Cap. F23, LFN, 2004 the tenure of office of the Registrar of the 1st Appellant is by law fixed for such period as is specified in his letter of appointment. He argued that the approval of the 2nd Appellant for the 3rd Appellant to retire at the end of his tenure is lawful.

The learned Counsel for the Appellants also submitted that there was nothing before trial court which shows that the 3rd Appellant was overstaying his tenure in office or that his tenure was being extended beyond the tenure for which he was appointed which should expire 31st July, 2012 or that 3rd Appellant was under any duty at all to vacate his office before the end of his said tenure.

It was submitted further on behalf of the Appellants that there was nothing before the trial court challenging the appointment of the 3rd Appellant in the first instance. If the appointment or renewal of appointment was not challenged, it is too late in the day for the Respondent to complain. He argued that there is no reason why the 3rd Appellant should refund salaries and allowances that were paid to him from 2010 till the date of Judgment as was ordered by the trial court. He referred to paragraph 4 (c), (d) and (e) of the 3rd Appellants’ counter affidavit on page 115 to 116 of the record of appeal and contended that the Respondent did not prove that the 3rd Appellant was earning anything outside what he was entitled to as Registrar of the 1st Appellant. There is therefore no justifiable reason why the 3rd Appellant should be ordered to refund the salaries and emoluments which was paid within the period.

It was also contended that the action was commenced by Originating Summons which is not the mode for commencing action for recovery of money.

Learned Counsel for the Appellants finally urged this court to allow the appeal and set aside the decision of the trial court.

The learned Counsel for the Respondent in his response stated that the 3rd Appellant ought to have retired in September, 2010. He referred to Exhibit A on page 10 of the record of appeal i.e Appellants’ letter annexed to the Respondent’s affidavit in support of Originating Summons. He referred to the provisions of:-

– Rules 020810 (i) and (ii) of the Public Service Rules 2008 Edition.

He contended that the 1st and 2nd Appellants’ approval for the 3rd Appellant to retire at the end of his tenure as Registrar on 31st July, 2012 when he ought to have retired from the Public Service in September, 2010, upon attaining the 35 years mandatory retirement age amount to either a renewal of appointment, a re-appointment or an elongation of retirement age of the 3rd Appellant contrary to Rule 020810 (i) and (ii) of the Public Service Rules, 2008 Edition.

The learned Counsel for the Respondent submitted that the 3rd Appellant as indicated in Exhibit “A”- i.e letter written by 3rd Appellant indicating that he had as at September, 2010 attained the retirement age or years which automatically disqualifies him from being reappointed as Registrar of the 1st Appellant.

He finally urged that this issue be resolved in favour of the Respondent.

It is not in dispute that the 3rd Appellant ought to have retired mandatorily from the position of Registrar of the 1st Appellant since September, 2010. Whereas, the tenure of his appointment as Registrar was to end on July, 2012.

The Respondent who was the Plaintiff before the lower court was aggrieved by the 1st and 2nd Appellants’ approval for the 3rd Appellant to continue occupying the position of Registrar of the 1st Appellant beyond September, 2010 being the 3rd Appellant date of retirement upon attaining the 35 or 60 years mandatory retirement age.

The question that comes to mind is whether the 3rd Appellant can hold the office of Registrar of 1st Appellant after the date of his mandatory retirement which is September, 2010.

In order to answer the question, it would be necessary to examine Rule 020810 (i) and (ii) of the Public Service Rules 2008 Edition which provides as follows:-

“1. That compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.

2. No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier”.

A careful examination of the above set out rules of civil service would show that it is mandatory for a public servant to retire upon attaining 60 or 35 years in the Public Service.

The keyword in the above provision is “SHALL” which denotes mandatoriness as distinct from discretion. It is a word of command and denotes an obligation.

It therefore follows that the 3rd Appellant having attained mandatory age of retirement ought to have retired in September, 2010. The import of the approval granted by 1st and 2nd Appellants to 3rd Appellant is in violation of Public Service Rules i.e. Rule 020810 (i) and (ii).

Reference was made to paragraph 8(2) of the 1st schedule to the Federal Universities of Technology Act, Cap F.23 Laws of the Federation of Nigeria 2004 which provides for re-appointment and this has to be read along with Rule 020206 and 020810 (i) and (ii) of the Public Service Rules.

Rule 020206 specify the conditions for appointments in the Public Service while Rule 020810 (i) and (ii) emphatically provide that no officer shall be allowed to remain in service after attaining the retirement age of 60 or 35 years in Public Service.

Consequent upon the foregoing, it is my view that the approval granted by 1st and 2nd Appellants to the 3rd Appellant to continue occupying the position of Registrar of the 1st Appellant beyond September, 2010 is illegal.

In the circumstance, the 3rd Appellant’s stay in office after the date of his mandatory retirement which is September, 2010 is unlawful.

On the whole, it is my view that the findings of the lower court is faultless. There is no basis to interfere with it.

In the result, I find no merit in this appeal. It fails and it is accordingly dismissed. The Judgment of the Federal High Court, Yola delivered on 14th day of May, 2012 in SUIT NO: FHC/YL/CS/53/2011 is hereby affirmed.

There shall be no order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother, Bada J.C.A., and I agree entirely with his reasoning and conclusion. I also find the Appeal lacking in merit and it is accordingly dismissed. I endorse all the consequential orders made thereto, inclusive of the order as to costs.

ADAMU JAURO, J.C.A.: I have been afforded the opportunity of reading in advance the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA.
I am in total agreement with the lead judgment to the effect that the appeal is lacking in both merit and substance. I adopt the said judgment as mine and hereby dismiss the appeal.

I abide by the Order as to no costs.

Appearances

Mr. E.O. Odo with him J. Williams Esq.For Appellant

AND

Mr. M. P. AtsevFor Respondent