MR. V. O. OLA JEGEDE & ORS V. ATOKI OLUWASESAN
(2011)LCN/4716(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/AE/80/2010
RATIO
DUTY OF COURT: WHETHER THE EVALUATION OF EVIDENCE IS A DUTY WHICH FALLS ALMOST EXCLUSIVELY WITHIN THE DOMAIN OF THE TRIAL COURT
It is trite that evaluation of evidence is a duty which falls almost exclusively within the domain of the trial court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Ordinarily therefore, evaluation of evidence is not the business of the appellate court. The evaluation and appraisal of evidence and the ascription of probative value to evidence are therefore the primary function of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court therefore has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably appraises the facts and arrives at a conclusion on the credible evidence, the appellant court will not interfere with such findings of facts, nor is it the business of such an appellate court to substitute its own views of the facts for those of the trial court. ANIONWU VS ANONWU (2009) ALL FWLR (PT.497) 116: ELERAN VS ADERONPE (2008) 11 NWLR (PT.1097) 50: AYEWOLE VS AKANDE (2009) VoL.38 WRN 1. PER UWANI MUSA ABBA AJI, J.C.A.
INTERFERENCE OF FINDINGS OF TRIAL COURT: CIRCUMSTANCES UNDER WHICH AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF A TRIAL COURT
The only situations when an appellate court may interfere with such findings are in circumstances such as where the trial court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber stamp the error, but should intervene. PER UWANI MUSA ABBA AJI, J.C.A.
EVALUATION OF EVIDENCE: WHETHER EVALUATION OF EVIDENCE INVOLVES REVIEWING AND CRITICIZING THE EVIDENCE AND ESTIMATING IT
Evaluation of evidence involves reviewing and criticizing the evidence and estimating it, see OGUNLEYE vs. AINA (2011) 3 NWLR (Pt.1235) 479. The evaluation does not stop with the assessing the credibility of witnesses. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case, in order to determine whether the totality of the evidence supports a finding of fact, which the party adducing the evidence seeks the trial court should make. See BASSIL vs. FAJEBE (2001) NWLR (PT.725) 592: AKANIMDE v. DINO (2009) ALL FWLR (PT.471) 929 @ 948: LAGGA VS SARTNUNA (2008) 16 NWLR (PT.1114) 427 @ 461. PER UWANI MUSA ABBA AJI, J.C.A.
PERVERSE FINDINGS: WHEN IS THE FINDINGS OF A TRIAL COURT REGARDED AS PERVERSE
A finding of a trial court is perverse where it runs counter to the evidence and pleadings before the court or where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious or when it occasioned a miscarriage of justice. See YARO vs. AREWA CONSTRUCTION LTD (2007) 16 NWLR (PT.1063) 333: ATOLAGBE VS SHORUN (1985) 1 NWLR (PT.2) 1 NWLR, 60: ADEMIRO VS AJUFO (1988) 3 NWLR (PT.80) 1. PER UWANI MUSA ABBA AJI, J.C.A.
DUTY OF APPELLATE COURT: WHETHER AN APPELLATE COURT HAS THE DUTY TO SET ASIDE A PERVERSE FINDING OR DECISION
It is settled that an appellate court has the duty to set aside a perverse finding or decision particularly as in the instant case that guaranteed the Respondent a continued appointment in the service of Ekiti State House of Assembly as Personal Assistant. See C.D.C NIG LTD VS SCOA NIG LTD (2007) 30 W.R.N. 81 @ 118: EKPEYONG VS NYONG (2003) 51 WRN 44. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. MR. V. O. OLA JEGEDE (Director of Finance and Administration Ekiti State House of Assembly, Ado-Ekiti)
2. MR. B.A. FAMOYEGUN (The Clerk, Ekiti State House of Assembly)
3. MR. D. T. IBIKUNLE (Accountant-General, Ekiti State) Appellant(s)
AND
ATOKI OLUWASESAN Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading judgment): This is an appeal against the decision of High Court of Justice, Ekiti State, Ado Judicial Division, delivered by Hon. Justice M. A. Agbelusi on the 18th January, 2010 in Suit No: HAD/43/2009 which gave judgment in favour of the Respondent.
The Respondent herein was the Plaintiff before the lower court and by an originating summons dated 28th April 2009 instituted an action against the Appellants as Defendants on the 4th May, 2009.
The Appellants filed a Notice of Preliminary Objection to the hearing of the suit on 12th June, 2009, on the ground that the issues involved in the originating summons are contentious. The Respondent filed a counter affidavit and after taking arguments from counsel, the learned trial judge in a considered ruling ordered the filing of pleadings.
The Respondent’s statement of Claim dated the 26th June, 2009 was filed on the 27th June, 2009 wherein the Respondent prayed for the following reliefs.
(i) A DECLARATION that the Plaintiff by his letter of appointment is appointed to the office of Deputy Speaker, Ekiti State House of Assembly.
(ii) AN ORDER of Court directing or mandating the Defendants to pay the sum of N96, 590:00 being the salary for the Plaintiff as personal Assistant to the Deputy-Speaker, Ekiti State House of Assembly for the month of March, 2009.
(iii) AN ORDER of court directing or mandating the 1st and 2nd Defendants to pay the sum N50, 000 to the Plaintiff in the following order:-
1. Christmas and New Year bonus N20, 000:00
2. Impress or office allowance for January, 2009, N16, 000:00.
3. Impress or office allowance for February, 2009 N12, 000:00.
4. Impress or office allowance for March, 2009 N12, 000:00.
(iv) AN ORDER of court directing or mandating the Defendants to pay the subsequent salaries and allowances of the Plaintiff as long as he remains in the service of Ekiti State Government.
OR ALTERNATIAVELY
(v) AN ORDER of court directing or mandating the Defendants to pay in lump sum the remaining entitlements of the Plaintiff for which he is entitled as Personal Assistant to the Deputy Speaker, Ekiti State House of Assembly within a period of four years.
The Appellants filed a Statement of Defence and a counter claim on the 9th July, 2009, which the Appellants later amended during trial on 30th September, 2009 and further amended on 15th December, 2009.
By the said further Amended Statement of Defence and Counter-Claim, the Appellants’ Counter Claim is for the following reliefs:-
(i) A DECLARATION that the Plaintiffs appointment ceased on August 1st, 2007.
(ii) A DECLARATION that the Plaintiff is not entitled to collect the sum of one Million Eight Hundred and Forty one Thousand One Hundred and Seventy Nine Naira and Twenty Three kobo (N1, 941 179:23) (sic) and Two Hundred and Ten Thousand (N210, 000:00) being money collected illegally by the Plaintiff as salaries and impress for the months of August 2007 to January, 2009.
(iii) AN ORDER that the Plaintiff should refund the sum of one Million, Eight Hundred and Forty one Thousand, One Hundred and Seventy Nine Naira and Twenty three kobo (N1, 841, 179:23) for the months of August, 2007 to January, 2009.
(iv) AN ORDER for 10o/o interest on the judgment sum until it is finally paid.
The Respondent filed a reply to the Statement of Defence and a defence to the counter claim on 10th July, 2009.
Having joined issues, the matter went to trial. The Respondent testified for himself but did not call any other witness while the Appellants called three witnesses. After address by respective counsel, the learned trial judge, M. A. Agbelusi, in a considered judgment delivered on the 18th January, 2010 gave judgment in favour of the Respondent, granting all the reliefs sought by him and dismissed the Appellants’ Counter Claim.
Being aggrieved by this decision, the Appellants filed an Amended Notice of Appeal; on the 23rd February, 2011 incorporating five grounds of appeal pursuant to the Order of the Court granted Appellants on the 21st of February, 2011. The Amended grounds of appeal short of their particulars are hereby reproduced.
GROUND 1
The learned trial judge erred in law when he held as follows:
“My answer to that is that it is within the competence of the State Government to employ any number member (sic) of staff it wishes to appoint and for whatever purpose it may deem fit”.
GROUND 2.
The learned trial judge erred in law in holding that the Plaintiff by his letter of appointment was appointed to the office of Deputy Speaker, Ekiti State House of Assembly.
GROUND 3
The learned trial judge erred in law when he refused to admit the letter dated 3rd day of June 2009 which stopped the salary of the Plaintiff stating that the letter was made during the pendency of the action thereby occasioning a miscarriage of justice.
GROUND 4
The learned trial judge erred in law when he failed to ascribe any probative value to exhibit “E”.
GROUND 5
The decision of the court is against the weight of evidence.
As it is the practice, parties filed and exchanged briefs of argument. The Appellants’ brief of argument, settled for Dayo Akinlaja, Esq; Hon. Attorney General Ekiti State, dated 16th February, 2011 was filed on the 7th March, 2011, but was deemed properly filed on the 4th May 2011. The Respondent’s brief of argument settled by Ademola Adeyemi, Esq, dated 26th May 2011 was filed on the 27th May, 2011. The Appellants Reply brief to the Respondents brief was filed on the 7th June 2011.
The Appellants distilled three issues for determination, to wit:-
1. Having regards to the circumstances of the case and evidence led at the trial thereof, whether the learned trial judge was not wrong in giving judgment to the Respondent and dismissing the Appellants’ counter claim.
2. Whether the refusal of the learned trial judge to admit in evidence the letter dated 3/6/2009 which stopped the salary of the Respondent was not improper and whether such refusal did not in the circumstances of the case occasioned a miscarriage of justice to the Appellants.
3. Whether the learned trial judge was not wrong to have construed the contents of Exh. ‘A’ to perpetuate the Respondents appointment even in the face of Exh. ‘E’.
The Respondent also, identified three issues for determination; to wit:-
A. Whether or not the trial court in the light of Exhibit ‘A’ was right in holding that the appointment of the Respondent was not made to a particular named person but to any incumbent of the office of the Deputy Speaker, Ekiti State House of Assembly.
B. Whether or not the trial court was right in refusing to admit the letter dated 3rd June, 2009 which later purportedly stopped the salary of the Respondent and which letter was issued well after the Respondent has instituted the action on 4th May 2009.
C. whether or not the trial court in the light of the evidence adduced was right in granting the reliefs of the Respondent on preponderance of evidence.
I have considered the issues as formulated by the respective counsel and I am of the view that they are not dissimilar. The Appellants’ issue 1 is the same in con with the Respondents issue C and the Appellants issue 2 is also the same in substance with Respondents’ issue B and the Appellants’ issue 3 is the same in con with the Respondents’ issue A in the circumstances, I will adopt the issues as formulated by the Appellants in the determination of this appeal.
Issue 1
Having regards to the circumstances of the case and evidence led at the trial thereof, whether the learned trial judge was not wrong in giving judgment to the Respondent and dismissing the Appellants’ Counter-Claim.
In arguing this issue, learned counsel for the Appellants, the Hon. Attorney General referred to the judgment of the trial court at page 123, lines 23 – 25 wherein it was stated that; “it is within the competence of the state government to employ any number (sic) of staff it wishes to appoint and for whatever purpose it may deem fit”, to submit that the above conclusion has no legal basis nor was it based on the facts borne out of evidence before the trial court. He argued that this is a misconception of the case before the court and a vice on the part of the learned trial judge citing in support the case of ADEJUGBE vs. OLOGUNJA (2004) 6 NWLR (PT.868) 46 @ 70.
He submitted that the case of the Appellants before the trial court is that, with the resignation of Hon. Morakinyo as Deputy Speaker on the 1st of August, 2007, the Respondent ceased to function or occupy the position of the Personal Assistant to the Deputy Speaker with the effect from 1st August, 2007. He referred to the testimonies of DW1 and DW2 and also Exhibits ‘A’ and ‘E’ to submit that Exhibit ‘A’ shows that the appointment of the Respondent was with effect from 28th June 2007 , while Exhibit ‘E’ shows that DW1 was appointed to take the position of the Respondent vide Exhibit ‘E’ which is dated 8th November 2007. He submitted that it has not been the contention of the Appellants that both the Respondent and DW1 were appointed at the same time as Personal Assistants to the Deputy Speaker. It is his view that the Respondent ceased to serve in that capacity with the resignation of his master before the appointment of DW1 as Personal Assistant to the incumbent Deputy Speaker. It is thus his view that the conclusion of the learned trial judge has occasioned a miscarriage of justice to the Appellants and that the trial court abdicated the throne of justice rooted in facts and concrete evidence for the provinces of conjecture, speculation, sentiments and assumptions.
The learned Attorney General further submitted that, on the stand point of the above scenario, the learned trial judge has set up for the parties a case which is different from the one canvassed by them in their pleadings and evidence. The following cases were relied upon; ONIAH vs. ONYIAH (1989) 1 NWLR (PT.99) BALONWU VS IKPEAZU (2005) 13 NWLR (PT.942) 527: WIKE VS IGHEONWO (1999) 4 NWLR (PT.600) 618. The court was urged to use the evidence on record to interfere with the decision of the trial court which does not accord with the evidence on record as in the cases of; NWOKORO VS NWOSU (1994) 4 NWLR (PT.337) 172 @ 186 – 187; AGBOKE VS IGBIRA (1997) 9 NWLR (PT.519) 40 @ 48.
The learned Attorney General for the Appellants also submitted that there is no privity of contract between the Appellants and the Respondent and that he should have sued the Governor and not the Appellants in this case; He cited in support the case of MUSTAFA vs. MUNGUNO L. G. (1987) 2 NWLR (PT.62) 663. He therefore urged the court to interfere with the conclusion of the trial court, set it aside and resolve the issue in favour of the Appellants.
In his response by his issue C, learned counsel for the Respondent Ademola Adeyemi, Esq, submitted that it is trite that civil cases like the instant case, are determined on the preponderance or probability of evidence and in evaluating evidence, a court is enjoined to consider the credibility, conclusiveness and probability of all evidence adduced, citing in support the case of NWOKEDU vs. OKANU (2010) 3 NWLR (Pt.1181) 362 @ 395.
He submitted that apart from pleadings and evidence, the Respondent tendered Exhibit ‘A’, his appointment letter which is the fulcrum upon which his case lies, that his appointment was not made to a named person but the Deputy Speaker, Ekiti State House of Assembly irrespective of the incumbent of that office. He cited the case of KOTUN vs. OLASEWERE. (2010) 1 NWLR (Pt.1175) 411 @ 437 to submit that documentary evidence serves as a hunger from which to assess oral testimony and when documentary evidence supports oral testimony, the oral evidence becomes more credible. He submitted that the Appellants gave evidence that the Respondent was appointed as Personal Assistant to Honourable Adebayo Morakinyo, whereas Exhibit ‘A’ did not state so. It is his view that the Appellants position contradicts Exhibit ‘A’ and where such contradiction exist, the documentary evidence supersedes, citing also the case of OGBE vs. ASADE (2009) 18 NWLR (Pt.1172) 106 @ 131.
It is his further view that the trial court considered all the evidence before it, evaluated same and made findings of facts and ascribed probative value to same which duty is within its province. He relied on UNITY BANK PLC. VS BOUARI (2008) 7 NWLR (PT.1086) 1372 @ 419. He went on to submit that the only situation where an Appellate court will interfere with a trial court’s evaluation is when it is shown that the finding of the trial court is perverse, citing also the case of GBINIJE VS ODJI (2011) 4 NWLR (PT. 1236) 103 @ 133.
It is also his view that in the instant case, nowhere was it shown that the decision was perverse and no evidence was identified or specified to be improperly evaluated or that if the error complained of had been corrected the conclusion reached by the court would have been different.
He relied on the case of EBLA CONSTRUCTION LTD., vs. COSTAIN (WEST AFRICA) PLC (2011) 6 NWLR (PT. 1242) 110 @ 132.
On the finding of the court that, the State Government has the competence to employ any number of staff it wishes to appoint for whatever purpose it may deem fit, which the Appellants contended that it has no legal basis, it is the view of learned counsel that evaluation of evidence which is in the province of the trial court entails reviewing and criticizing the evidence elicited and estimating them, including documents tendered by parties. He cited in support the case of OGUNLEYE vs. AINA (2011) 3 NWLR (PT. 1235) 479 @ 599.
Learned counsel therefore submitted that the trial court was right in making the observation in considering Exhibits ‘A’ and’ E’ and that such was not made out of turn nor constitute a vice as alleged by the Appellants and concluded that the decision reached by the trial court was anchored on the evidence before it and not otherwise.
On the contention of the Appellants that the Respondent ought to have sued the Governor for the stoppage of his salary, Adeyemi, Esq, submitted that a party cannot be asked to sue a person against whom he has no relief or complain, citing in support the cases of; FAWEHINMI VS NBA (NO.1) (1989) 2 NWLR (PT.105) 494 @ 510: AND DANTSOHO VS MOHAMMED (2003) 6 NWLR (PT. 817) 457 @ 488. The court was urged to resolve the issue in favour of the Respondents.
The complaint of the Appellants under this issue hinges on the evaluation of evidence by the trial court and the ascription of probative value to such evidence. It is also the case of the Appellants that the trial court misunderstood the case of the parties before it when it stated in its findings that it is within the competence of the State Government to employ any number of staff it wishes to appoint for whatever purpose it may deem fit.
It is trite that evaluation of evidence is a duty which falls almost exclusively within the domain of the trial court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Ordinarily therefore, evaluation of evidence is not the business of the appellate court. The evaluation and appraisal of evidence and the ascription of probative value to evidence are therefore the primary function of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court therefore has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably appraises the facts and arrives at a conclusion on the credible evidence, the appellant court will not interfere with such findings of facts, nor is it the business of such an appellate court to substitute its own views of the facts for those of the trial court. ANIONWU VS ANONWU (2009) ALL FWLR (PT.497) 116: ELERAN VS ADERONPE (2008) 11 NWLR (PT.1097) 50: AYEWOLE VS AKANDE (2009) VoL.38 WRN 1.
What the appellate court ought to do is to scrutinize the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere with such findings. The only situations when an appellate court may interfere with such findings are in circumstances such as where the trial court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it.
If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber stamp the error, but should intervene.
In view of the principle of law stated above, the question that follows is whether the learned trial judge performed his primary duty of evaluation and ascription of probative value to the evidence adduced before him or not as contended by the Appellants. To appreciate the stand point of the parties in the instant appeal, a review of the evidence adduced and exhibits tendered will be imperative.
The Respondent testified for himself. His testimony is to the effect that he became the Personal Assistant to the Deputy Speaker, Ekiti State House of Assembly on June, 7th 2007. That he was appointed by the State Government through the Secretary Ekiti State Government. He was appointed by a letter, admitted as Exhibit ‘A’ and that he also accepted the appointment in writing which was admitted as Exhibit ‘B’. That he started receiving a salary of N96, 590:00 and an impress of N12, 000:00 per month from the month he took up the appointment. He stated that the Ekiti State House denied his salary for the month of March, 2009. That no salary was paid into his account in March, 2009. The Respondents print out of his statement of account with GT Bank was admitted as Exhibit C. That when his salary and allowance were not paid, he authorized his counsel to write to the Clerk of the House demanding for its payment.
He further stated that his appointment was not made by Hon. Morakinyo, that when Morakinyo resigned from his office his appointment continued. That all his salary and impress were paid up to February, 2009. That was the case of the Respondent.
DW1 testified that he was the Personal Assistant to the Deputy Speaker, Ekiti State House of Assembly, Hon. Adeoti Saliu. That he was appointed by the State Government. That the Plaintiff was the Personal Assistant to Hon. Adebayo Morakinyo, former Deputy Speaker Ekiti State House of Assembly. He also knows the Defendants. He further stated that he was appointed in 2007 as Personal Assistant to the Deputy Speaker through the Secretary to the State Government through a letter, admitted as Exhibit ‘E’, that Hon. Saliu Adeoti was appointed Deputy Speaker in August 2007.
The 1st Respondent herein testified as DW2. He testified that he is the Director Finance and Administration Ekiti State House of Assembly and knows the Plaintiff as the former Personal Assistant to the former Deputy Speaker, Honourable Adebayo Morakinyo. He stated that sometime in June, 2007 when the 3rd Assembly commences, Hon. Morakinyo was appointed the Deputy Speaker. After the appointment of the Deputy Speaker there were crises in the House which led to the resignation of the Deputy Speaker Hon. Morakinyo. With that resignation, Hon. Morakinyo ceased to enjoy all the perquisites attached to the office of the Deputy Speaker which include official vehicles, official drivers and his personal aids especially the Personal Assistant that is on Government pay roll.
He stated that after the resignation of the Deputy Speaker, they found that the salaries and allowances of the Personal Assistants were still being paid to the Personal Assistants which amount to illegal payment to the Plaintiff. That after the discovery, the payment to the Plaintiff was stopped. That the Respondent collected a total sum of N1.8 Million which was paid to him illegally and also collected allowances of N210, 000:00 as impress illegally. He also stated that the plaintiff was appointed as Personal Assistant to Hon. Morakinyo and not to the office of the Deputy Speaker.
The witness stated under cross examination that members of the Ekiti State House of Assembly are entitled to two legislative aides on salary grade 08 and 09. That their appointment is attached to the tenure of their principal. That the legislative aides were appointed by the House of Assembly Service Commission because of the autonomy of the House. That it was Ekiti State Government that appointed the Plaintiff because the appointment was before the autonomy of the House, and that it was also the State Government that paid the salary of the Plaintiff because it is the Government that pays all political appointees and other officers.
DW3 works with the office of the State Auditor General. He testified that according to the records, the Plaintiff was the Personal Assistant to the former Deputy Speaker.
His evidence was that in the course of his assignment as an auditor to Ekiti State House of Assembly, it was discovered that salaries were being paid to some officers who were no longer in the service of the State Assembly. He stated that by Law, the Speaker of the House of Assembly and Deputy Speaker are both entitled to Personal Assistants whose salary are already included in their personal emolument. That the Personal Assistants of the Speaker and Deputy Speaker become ordinary members of the House of Assembly. That with change of status, the salaries of the Personal Assistant is embedded in the salary of the principal.
He further stated that during the period of auditing, it was discovered that salaries were being paid to these officers who were no longer Personal Assistants as the Speaker and Deputy Speaker ceased to be so. That, they immediately stopped the payment of the illegal salary and a further instruction to compute the salary they have collected. The letter of stoppage of salary sought to be tendered was objected to and the rejection was sustained by the court and same was so marked, ‘rejected’.
The witness further stated that they do routine auditing and all observations made would be communicated to the client, i.e. the House of Assembly. He stated that the subject matter of this case was discovered during routine auditing of the first quarter of this year that the Assembly was paying illegal salary because the office they hold ceased to exist.
He stated under cross examination that the functions of the Auditor General are contained in Section 124 of the Constitution of the Federal Republic of Nigeria. That was the case of the Appellants.
Now, upon the evidence of the parties as reproduced above vis-a-vis their respect pleadings, would the finding of the learned trial judge that “it is within the competence of the State Government to employ any number member (sic) of staff it wishes to appoint and for whatever purpose it deem fit” said to have no any legal basis or based on facts not borne out of evidence before the trial court, or could it be a misconception of the parties case entirely?
Evaluation of evidence involves reviewing and criticizing the evidence and estimating it. see OGUNLEYE vs. AINA (2011) 3 NWLR (Pt.1235) 479. The evaluation does not stop with the assessing the credibility of witnesses. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case, in order to determine whether the totality of the evidence supports a finding of fact, which the party adducing the evidence seeks the trial court should make. See BASSIL vs. FAJEBE (2001) NWLR (PT.725) 592: AKANIMDE v. DINO (2009) ALL FWLR (PT.471) 929 @ 948: LAGGA VS SARTNUNA (2008) 16 NWLR (PT.1114) 427 @ 461.
The main contention of the Respondent is that his appointment letter was the fulcrum of his claim before the court and that the said appointment was not made to a named person but to the Deputy Speaker Ekiti state House of Assembly irrespective of the incumbent in the office. The Respondent also contended that he was not appointed to Hon. Adebayo Morakinyo because his letter Exhibit A did not state so.
It is clear from the available evidence on record that the Respondent was appointed Personal Assistant during the tenure of the Former Deputy speaker, Rt. Hon. Adebayo Morakinyo. It is also a fact borne out from the evidence before the court that Hon. Morakinyo resigned his post as Deputy Speaker to allow peace reign in the House.
In his evidence, D.W.1 stated that he was appointed personal Assistant to the incumbent Deputy speaker, after the resignation of Hon. Morakinyo as Deputy Speaker. His letter of appointment Exhibit ‘E’ shows that he was appointed in November, 2007. He stated that he was Personal Assistant to Hon. Adeoti Saliu, Deputy Speaker, Ekiti State.
Also D.W.2, in his evidence herein produced in this judgment stated that with the resignation of Hon. Morakinyo, he ceased to enjoy all the perquisites attached to the office of the Deputy Speaker which included official vehicle, official driver and his personal aids especially the Personal Assistant that is on Government pay roll.
D.W.3, the representative of the Auditor General, stated that in the course of their routine auditing of account of the House of Assembly, they discovered that salaries were being paid to some officers illegally by the State Government according to the record of the House of Assembly and that those paid illegally included the Respondent who was Personal Assistant to the former Deputy Speaker, Hon. Adebayo Morakinyo. He further stated that by law the Speaker and Deputy Speaker of the House of Assembly are both entitled to Personal Assistant and Special Assistant, while every other member of the House is entitled to Personal Assistant whose salaries are included in their personal emolument. It is also his evidence that when the Speaker and the Deputy Speaker resigned, they ceased to enjoy the privileges of the office and the appointment of their Personal Assistants also ceased as the appointment is attached to the tenure of their Principal.
It is also his evidence that after the resignation of the Deputy Speaker, Hon. Morakinyo, the Respondent continued to collect his salary illegally and ordered for the stoppage of the salary as there is no law providing for the occupants of such post to continue to enjoy the benefits when they are no longer occupying the post and their personal aids also goes with them.
Now the sum total of the evidence adduced by the Appellants before the court is that the Respondent was appointed Personal Assistant to the Deputy Speaker, Hon. Adebayo Morakinyo and when Hon. Morakinyo resigned his post as a Deputy Speaker, the Respondent also ceased to be his Personal Assistant and salaries collected by him from August, 2007 to February, 2009 were illegally collected by him and the Respondent has no salary and allowance to collect in March, 2009 as claimed by him.
I have carefully scrutinized the testimony of these witnesses of the Appellants and that of the Respondent and I am of the view that those findings of the learned trial judge are not solidly and firmly supported by evidence adduced before him. The learned trial judge drew wrong inference and therefore came to a wrong conclusion that the Governor can appoint any number of staff he deem fit to make.
The Respondent’s letter of appointment reads inter alia:
“LETTER OF APPOINNENT AS PERSONAL ASSISTANT TO THE RIGHT HONOURABLE DEPUTY SPEAKER
I am pleased to inform you that His Excellency, the Governor of Ekiti State; Engineer Olusegun Adebayo Oni has graciously approved your appointment as personal Assistant to the Rt. Hon. Deputy Speaker with the effect from 7th June, 2007.”
The said letter is self explanatory and admits of no ambiguity even at the instance of the interpretation given by the learned trial judge. Who was the Rt. Hon. Deputy Speaker at the time of appointment of the Respondent as Personal Assistant? The word “the” used in the letter is a definite article used to refer to a person, place or thing. At the time the Respondent was appointed the Personal Assistant to the Deputy Speaker Rt. Hon. Adebayo Morakinyo was the incumbent Deputy Speaker.
Therefore, upon the evidence adduced before the court the learned trial judge was absolutely wrong to have found only that it is within the competence of the State Government to employ any number of staff it wishes to appoint and for whatever purpose it may deem fit. This finding is indeed not borne out from the evidence adduced before the court. This finding by the lower court is a clear misunderstanding of the case submitted to it by the parties.
One fundamental aspect of this case which the learned trial judge failed to appreciate or comprehend despite the evidence of D.W.1, DW2 and DW3 before him is the nature of the Respondent’s appointment as Personal Assistant to the Rt. Hon. Deputy Speaker and not the interpretation of the Respondent’s letter of appointment. There is no gain saying the fact that the office of a Deputy speaker is a political office. This fact has been so stated by both DW2 and DW3 as regards the entitlement of these political office holders. The appointment of the Respondent is therefore political appointment and not an appointment pursuant to any statute or civil service Rules which is meant to be permanent and pensionable. This is what the Appellants’ evidence established before the trial court. The argument of the Respondent that he was not appointed to a named Deputy speaker will not derogate from the fact that his appointment depended on the subsistence of the tenure of the Deputy speaker under whom he operated. After all there is evidence that the incumbent Deputy Speaker had his own Personal Assistant appointed to his office. See Exhibit E.
Also, the contention of the Respondent that he was appointed by the Government and that the same was communicated to him through the office of the Secretary to the State Government does not change the nature of his appointment being attached to the office of the Principal Officer as all appointments are made at the instance of the Governor as it is the state fund that is being used to pay for the services rendered. It is therefore clear from the facts and circumstances of this case, that the learned trial judge miscomprehended the case of the parties and proceeded to decide the case as misunderstood. The issue in contention is not the interpretation of the Respondent’s letter of appointment but of the nature of his appointment as stated in the evidence of the Appellants witnesses. In such circumstances, the misunderstanding of the case is a fundamental vice which render the decision indefensible and unsustainable. See Adeiugbe Vs Ologunja (2004) 6 NWLR (pt. 868) 46 @ 76.
In view of the misunderstanding of the case of the parties before him, the trial judge failed to properly evaluate the evidence before him and or give any probative value to such evidence and thus reached a perverse finding. It is trite that it is the duty of a court of law to take the case of the parties dispassionately and evenly. It must examine and analyze the case of both parties as in the record. Where a court of law, trial or a tribunal, misconceives the case as contained in the record and reaches a conclusion in that misconception, this court will certainly set aside the judgment which is a product of the misconception. This is clearly the position of the instant case. See ADEJUGBE vs OLOGUNJA (SUPRA): OYEWALE VS OYESORO (1998) 2 NWLR (PT.539) 663.
It is therefore my candid view that the finding of the learned trial is perverse. A finding of a trial court is perverse where it runs counter to the evidence and pleadings before the court or where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious or when it occasioned a miscarriage of justice. See YARO vs. AREWA CONSTRUCTION LTD (2007) 16 NWLR (PT.1063) 333: ATOLAGBE VS SHORUN (1985) 1 NWLR (PT.2) 1 NWLR, 60: ADEMIRO VS AJUFO (1988) 3 NWLR (PT.80) 1.
It is settled that an appellate court has the duty to set aside a perverse finding or decision particularly as in the instant case that guaranteed the Respondent a continued appointment in the service of Ekiti State House of Assembly as Personal Assistant. See C.D.C NIG LTD VS SCOA NIG LTD (2007) 30 W.R.N. 81 @ 118: EKPEYONG VS NYONG (2003) 51 WRN 44.
Based on the above, this issue is resolved in favour of the Appellants against the Respondent.
Issue 2
Whether the refusal of the learned trial judge to admit in evidence the letter dated 3/6/2009 which stopped the salary of the Respondent was not improper and whether such refusal did not in the circumstances of the case occasioned a miscarriage of justice to the Appellants.
This issue is the same in con with the Respondent is issue B. In arguing this issue, the learned Attorney General for the Appellants submitted that the trial court ought not to have held that DW3 who wrote the said letter qualified as “a person interested in the pending suit” before the court.
Learned counsel drew the attention of the court to the judgment of the lower court at pages 120 -121 of the record of appeal and submitted that DW3 acted solely as a professional in the conduct of his professional routine duty and who was in court to attest to his own findings regarding the letter he wrote on the 3rd/6/2009. He submitted that the learned trial judge was in grave error and failed to be guided by the procedure laid down by the court under Section 91(3) of the Evidence Act, when he held that the Accountant General being a Public Officer is a person interested in this case. He submitted that the learned trial judge refused to accept the letter written by DW3 dated 3/6/2009 in evidence being a senior civil servant and an interested party in the suit. Learned counsel further referred to page 111 paragraphs 10-14 of the record of appeal and submitted that the judge fell into grave error when he held that the Auditor General is a public Officer and therefore is an interested person in this case. Learned counsel referred to the case of SUSANO PHARM. C.O. vs. SOPHARM LTD. (2000) 4 NWLR (PT.651) @ 68 on the effect of Section 91(3) of the Evidence Act to submit that the learned trial judge was wrong in rejecting the document sought to be tendered.
He further submitted that the interest of DW3 as the maker of the letter dated 3/6/2009 is purely official and that he remains a servant employee of the Government without any direct personal interest in the matter and the court was urged to so hold. It is his view that the learned trial judge misconstrued the provisions of Section 91(3) of the Evidence Act even after citing the decision of the Supreme Court in ANYARBOSI VS. R. T. BRISCOE (NIG) LTD. (1997) 6 SC 15 @ 51. He further cited the case of ELDER OKON BASSEY ASUQUO VS DR. ARCHIBONG OKON BASSEY ASUQUO (2010) WRN VOL.21.49 @ 55 on the meaning of “person interested” within the con of Section 91(3) of the Evidence Act and submitted the trial court fell into grave error to have regarded DW3 as person interested contrary to Section 91(3) of the Evidence Act and argued that this finding occasioned a miscarriage of justice and the court was urged to set it aside. The case of ADEJUGBE VS OLOGUNJA (2004) 6 NWLR (PT. 868) @ 70 was also relied upon. The court was thus urged to resolve this issue in favour of the Appellants.
Responding, learned counsel for the Respondent Ademola Adeyemi, Esq. submitted that after the close of the case of the Respondent, the Appellants sought to tender a letter dated 3rd June, 2009 purporting to stop the salary of the Respondent which was stopped in March, 2009 and the Respondent objected. According to Adeyemi, Esq, the Appellants have stopped payment of the salary of the Respondent in March, 2009 based on a letter written by the Auditor General, when the said letter was not written until June, 2009 well after the salary has been stopped and the Respondent has instituted his case. It is the view of learned counsel that the letter is suspect, made during the pendency of the suit by a person who is alleged to have personally participated in the acts leading to the institution of the case by the Respondent. Learned counsel referred to the provisions of Section 91(3) of the Evidence Act and submitted that the statement or the document is not admissible. He also relied on the case ARARUME vs. INEC (2002) 9 NWLR (PT.1038) 127 @ 161: MWT (NIG) LTD. VS. P.T.F. (2007) 15 NWLR (PT.1058) 451 @ 495 – 496.
It is his view that the letter dated 3rd June, 2009 would not have come under the hammer of Section 91(3) Evidence Act, if it had been made before the salary was stopped in March and before the Respondent instituted the action. His contention is that DW3 represents the Appellants in court and the 3rd Appellant being the Auditor General, represented by DW3, have nexus with the Appellants in the case and not independent and impartial person.
He further argued that if the office of the Auditor General is not a person interested, how could they have alleged to have directed by a letter the stoppage of the Respondent’s salary since March 2009 when the said DW3 did not write the letter until 3rd June, 2009? His view is that it would amount to magic to stop a salary based on a letter when the said letter was not in existence when the salary was stopped. He submitted relying on the case of RE-OPAKUN (2004) 6 NWLR (PT.870) 576 @ 594 that, a court is a Court of Law where miracles or magic have no place in decision making.
It is also the view of learned counsel, that considering the circumstances of the instant case and the peculiarity of the facts, and the letter dated 3rd June, 2009, the trial court is right to reject the document as it did. He referred to the case of NEPA vs. ADEYEMI (2007) 3 NWLR (PT.1021) 315 @ 333: and S.E.A.P.S. LTD. VS OGUNNAIKE (2008) 14 NWLR (PT.1106) 1 @ 20 to conclude that the trial court should not have allowed or relied on a document made after the institution of the case. The court was urged to resolve the issue against the Appellants and in favour of the Respondent.
This issue challenges the refusal by the learned trial court to admit in evidence the letter dated 3rd/6/2009 sought to be tendered by the Appellants through DW3.
The contention of the Respondent is that the said letter was made during the pendency of the suit by a person who is alleged to have personally participated in the acts leading to the institution of the suit by the Respondent and that by Section 91(3) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, the document is inadmissible.
The Appellant’s contention herein is that the lower court was wrong to have held that the Accountant General is an interested party in the case and refused to admit the letter dated 3rd/6/2009 in evidence.
Section 91(3) of the Evidence Act, which is the subject of contention under this issue provides:-
“91
(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
Section 91 of the Evidence Act generally deals with the admissibility of documentary evidence as to facts in issue. The general rule for the admissibility of Statements under Section 91 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990 is that Statements are not admissible if made by persons interested or when proceedings are pending or anticipated.
The two phrases in the Sub-section must be examined. They are:-
(a) A person interested and;
(b) When proceedings are pending or anticipated.
Ordinarily, it means that a statement cannot be admitted under section 91 Evidence Act if made by a person interested or when proceedings are pending or anticipated. This section has been subjected to judicial pronouncements by both the Court of Appeal and the Apex Court.
Uwais, J.S.G (as he then was) in the case of MRS. ELIZABETH N. ANYAEBOSI VS R.T BRISCOE (NIG) LTD (1987) 6 S.C. 49 @ 50, held on the general rule for the admissibility of statements made by “persons interested and when proceedings are pending or anticipated”, that the word “interested’ in its ordinary etymological meaning could refer to both financial interest, or natural interest in the outcome of the proceedings cannot be seriously disputed.
He held that, the disqualifying interest referred to in Section 90 (3) (now Section 91(3)) must be given a narrow interpretation to ensure its effectiveness and permit the continuance of ordinary legitimate transactions untrammeled by the exclusionary rules of evidences.
In the instant case, the learned trial judge relied on the authority of ANYAEBOSI VS R.T BRISCOE (NIG) LTD (SUPRA) to come to the conclusion that DW3 was a person interested and rejected the letter dated 3rd/6/2009 sought to be tendered in evidence through DW3 who himself was the maker because it was made when proceedings were pending.
In the ANYAEBOSI vs R.T BRISCOE (NIG) LTD’s case, the claim was for the sum of N60, 935:00 for goods sold and delivered to the Defendant/Appellant. The Defendant not only denied the claim but also counter claim against the Plaintiff. The learned trial judge gave judgment in favour of the Plaintiff and dismissed the counter claim.
The Court of Appeal confirmed the judgment of the trial court and the Defendant went to the Supreme Court. The main contention of the Defendant/Appellant was that Exhibit P4, the statement of account relied upon by the Plaintiff/Respondent in the High Court to prove the claim was inadmissible on the ground that it was a document by an employee of the Plaintiff made in anticipation of legal proceedings and that was therefore made by a person interested”. The contention was Court and it was held that the document was prepared in the ordinary course of business and the appeal was dismissed.
The question that may be asked now is whether an employee can be regarded as a person interested. The judgment of Salami, J.C.A (as he then was) in the case of GBADAMOSI VS KABO TRAVWLS LTD (200) 8 NWLR (PT.668) 243 @ 276 – 278 is a useful guide in arriving at a just conclusion. After quoting Uwais, J.S.C (as he then was) in ANYAEBOSI VS R.T. BRISCOE (NIG) LTD (SUPRA), his lordship stated as follows:-
“It is clear from the wording of these provisions that the catch phrase of the provisions is person interested and when proceedings were pending or anticipated. As a general principle, document made of person interested when the proceedings are pending or is anticipated is not admissible. This provision in my humble view excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as ‘person interested’ relates only to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus, where the interest of the maker of the document is purely official or as a servant or employee having 27 no direct personal interest, these provisions do not apply to him and as such is admissible. See HIGHGRADE MARITIME SERVICES LIMITED VS FIRST BANK OF NIGERIA LTD (1991) 1 NWLR (PT.167) 290 @ 307.”
In the case of WESTMINISTER DREDGING (NIG) LTD VS OYIBO (1992) 5 NWLR (PT.239) 771 this court had cause to expatiate on the test of interestedness of a witness giving evidence in his employer’s favour. The court had this to say:
“The fact that Mr. Cottreal was on employee of the 1st Appellant would not by itself alone make his evidence a person with interest to protect….”
Disqualifying interest therefore exists in a situation where there is a likelihood of bias. It is trite law that where an employee or a servant makes a document in the course of discharging his official duty/function just as in the instant case, which does not involve any personal opinion, the question of bias does not arise and such document will be admissible under Section 91(3) of the Evidence Act. See SUSANO PHARMACEUTICAL COMPANY LTD VS SOL PHARMACEUTICAL LTD (2000) 4 NWLR (PT.651) 60 @ 68 – 69.
In the instant appeal, the contention of the Respondent that the letter was written during the pendency of the case and that DW3 who wrote the letter dated 3rd June, 2009 is a person interested as he personally participated in the acts leading to the institution of the case by Respondent and therefore the letter is not admissible is not tenable. The role of DW3 is only that of writing the letter in his official capacity as an employee. There is no evidence on record that he participated in any act leading to the institution of this suit.
In view of the decisions in the cases of ANYAEBOSI VS R.T BRISCORE (NIG) LTD (SUPRA): GBADAMOSI VS KABO TRAVELS LTD (SUPRA) AND WESTMINSTER DREDGING (NIG) LTD VS OYIBO (Supra). The Contention of the Respondent falls like a pack of cards. The letter sought to be tendered was prepared in the ordinary course of Government business in the cause of his official duties as an Auditor auditing the account of the Ekiti State House of Assembly that is only done periodically and DW3 cannot be said to be a person interested in the proceedings. Where therefore, an employee or a servant makes a document in the course of discharging his official duty or function does not involve any personal opinion, the question of bias does not arise and such document will be admissible under Section 91(3) of the evidence Act. See also SUSANO PHARMACEUTICAL COMPANY LTD VS SOL PHARMACEUTICAL LTD (Supra).
Similarly, in the case of CHANCHANGI & SONS LTD vs NIGERIA ROADS CONSTRUCTION LTD (1996) 5 NWLR (PT.446) 45 @ 56, it was held that the statement of an employee is admissible even if it were made when proceedings were pending or anticipated. Such statements are not excluded by Section 91(3) of the Evidence Act. See also CHINWUBA VS ALADE (1997) 6 NWLR (PT.507) 85.
Therefore, the fact that DW3 was an employee of Government does not make him an interested party in the case and the fact that the letter was written during the pendency of the case does not make it inadmissible under Section 91(3) of the Evidence Act. The refusal by the learned trial judge to admit the letter in evidence is perverse and I so hold. If he had admitted the said letter in evidence; he would have come to a different conclusion. I therefore resolved the issue in favour of the Appellants against the Respondent.
Issue 3.
Whether the learned trial judge was not wrong to have construed the contents of Exhibit ‘A’ to perpetuate the Respondents’ appointment even in the face of Exhibit ‘E’.
This issue is the same in con with Respondent’s issue ‘A’.
The Hon. Attorney General for the Appellants submitted that the trial court ought not to have construed the contents of Exhibit ‘A’ to perpetuate the tenure of the Respondent in office.
He referred to the judgment of the trial court at page 122 of the record of appeal where it held that Exhibit ‘A’ makes the appointment of the Respondent to the Right Honourable Deputy Speaker Ekiti State House of Assembly and not to Hon. Morakinyo Adebayo. It is the view of the learned Attorney General that in interpreting a statute, its ordinary literal meaning must be adhered to except where such adherence would produce absurdity. He further referred to page 123, lines 15 – 16 of the record of appeal, paragraph 3 to submit that the said pronouncement only brought in ambiguity to the meaning and intendment of Exhibit ‘A’.
According to learned counsel, the use of the word “the” before Rt. Honourable Deputy Speaker in the letter of appointment of the Respondent, Exhibit ‘A’ could only be said to be made to a specific person and that was the then incumbent Hon. Deputy Speaker, Hon. Adebayo. His view is that the word ‘the’ employed in the wordings of Exhibit A is a definite article and makes the appointment of the Respondent certain. It is also his view that Exhibit A never intended that the Respondent could occupy the office of a Personal Assistant for eternity.
Learned Attorney General referred to page 118 of the judgment of the trial court, wherein the court reviewed the testimonies of DW2 and DW3 and went on to submit that the evidence of DW1 shows that he has been the Personal Assistant to the Deputy Speaker for over two years now, while the Plaintiff was the Personal Assistant to the former Deputy Speaker, Hon. Adebayo Morakinyo. He contended that there is a sufficient piece of evidence before the trial court which should have guided the court in coming to the conclusion instead of resorting to construing Exhibit ‘A’ which leads to absurdity.
It is his view that the trial court deviated from the too numerous beacons towards proper adjudication of the matter. He also submitted that the case of the Appellants is that the Respondent through Exhibit A was appointed per term and that such term or tenure got spent with the subsequent appointment of DW1 vide Exhibit ‘E’ to another occupier of the position of Deputy Speaker; He cited and relied on the case of NIGERIAN ARAB BANK PLC VS. CAMEX LTD. (1999) 6 NWLR (PT.608) @ 645 to submit that there is needed to apply some common sense in the construction of statute. He concluded that the finding of the trial court is perverse and urged the court to interfere by setting it aside and thus resolve this issue in favour of the Appellants and to allow the appeal.
In his response, learned counsel for the Respondent, Ademola Adeyemi, Esq, submitted that the contention of the Appellants is that the Respondent was appointed as Personal Assistant to Hon. Adebayo Morakinyo, while nowhere in Exhibit A, was the Respondent expressly or directly appointed as Personal Assistant to Hon. Adebayo Morakinyo as that was not the intention of the maker of the document.
He submitted that the Respondent’s appointment was by the state Government vide Exhibit A and made through the Secretary to the State Government and not by any member of the House of Assembly which was conceded by the Appellants. That Exhibit A, the letter of appointment was the pivot upon which the case itself lies, and submitted that where a document is tendered in court, such document is the best proof of its contents, relying on the case of OBAZIKWON vs. OBAZIKWON (2008) 8 NWLR (PT.1090) 557 @ 575 and submitted that the Respondent was appointed as a Personal Assistant to the Hon. Deputy Speaker, an official position and not to a particular named person as the Appellants are contending. He submitted that, documents speaks for themselves and not through the interpretation of parties; citing also the case of yadis (Nig) Ltd vs. G.N.I.C Ltd. (2007) 14 NWLR (Pt.1055) 584 @ 610. It is also submitted that what the Appellants are trying to do was by the oral evidence add to the contents of Exhibit A which the Law prohibits by virtue of Section 1 32(1) of the Evidence Act.
On the interpretation of a document learned counsel for the Respondent referred to the following cases:-
– EGWUNEWU VS. EGEAGWO (2007) 6 NWLR (PT.1031) 431 @ 446 – 447:
– JAMB VS. ORJI (2008) 2 NWLR (PT.1072) 552 @ 572;
– NIGERIA ARMY VS AMINU KANO (2010) 5 NWLR (PT.1188) 429 @ 460;
– EKUNOLA VS. C.B.N. (2006) 14 NWLR (PT.1000) 292 @ 324.
He thus submitted that what the trial court did was merely to give Exhibit A its ordinary meaning and interpretation. He argued further that looking at Exhibit A one will agree that the intendment of the maker is not to make the appointment of the Respondent subject to a particular named person because if that were the case, the document would have been so expressed. That it was the State Government that appointed the Respondent and not any Honourable member of the House of Assembly.
Learned counsel further submitted that it is trite that where an appointment is made by a document, the determination of such appointment should also be by a document from the appointing authority, which is not so in the instant case. He relied on the case of UWAGBANEBI VS. N.P.P.B. (1906) 3 NWLR (PT.29) 489. He thus submitted that the appointment of DW1 one Babalola Adewumi vide Exhibit E does not automatically determine the appointment of the Respondent as there is no clause or words in Exhibit E that expressly determined previous appointment of Personal Assistants to the office of the Deputy Speaker. Learned counsel therefore submitted that the State Government has the power and authority to appoint more than one personal Assistant to a political office and that the Appellants failed to prove that the Deputy speaker is only entitle to one personal Assistant. He further submitted that the attempt by the Appellants to invalidate Exhibit A in the light of Exhibit E is a mere speculation and conjuncture which has no place in the system of law operating in the country. He cited the case of, BAMGBEGBIN vs. ORIARE (2009) 13 NWLR (pT.1158) 370 @ 396.
It is also submitted that counsel are enjoined to cite only relevant authorities, citing the case of I. C. B. N. NIG. LTD. vs. ADEMUAGUN (2005) 7 NWLR (PT.924) 275 @ 294.
On the submission of the Appellants that Exhibit A gave the Respondent an unending tenure, it is submitted that it was not raised at the trial court and that the submission of the Appellants is merely academic or hypothetical exercise which the court is forbidding from engaging in. He referred to the case of BEWAJI VS OBASANJO (2008) 9 NWLR (PT.1093) 540 @ 580. Learned counsel thus urged the court to resolve this issue in favour of the Respondent against the Appellants and to dismiss the appeal.
I have carefully perused the submissions of learned counsel under this issue and the authorities cited. The main grudge of the Appellants appears to be the interpretation given to Exhibit ‘A’, the Respondent’s letter of appointment by the learned trial judge; holding that the Respondents’ appointment vides Exhibit A is not to a named Deputy Speaker but to the office.
The case of the Appellants’ is that the Respondent was appointed vide Exhibit ‘A’ per term and that such term got spent with the resignation of the occupier of the office at that time, Rt. Hon Morakinyo Adebayo as Deputy Speaker, Ekiti State House of Assembly, and therefore the subsequent appointment of DW1 vide Exhibit ‘E’ to the incumbent Deputy Speaker.
On the other hand, the Respondent’s contention is that, nowhere in Exhibit ‘A’ was the Respondent expressly or directly appointed as Personal Assistant to Hon. Morakinyo Adebayo as that was not the intention of the maker of the document and the appointment was by the State Government through the office of the Secretary to the State Government.
Now, if one may ask, what does it mean to appoint a person as Personal Assistant? That is, does such appointment tantamount to a permanent and pensionable appointment under the civil Service cadre or it is only an appointment meant to be for a specific tenure?
The Letter dated 3rd June, 2009, rejected in evidence by the learned trial judge and which this court found the rejection wrongful is reproduced hereunder as follows:
“OFFICE OF THE STATE AUDITOR GENERAL
Ref. No. EK/GMD/HA/4Vol.II/220
Dated 3 June, 2009
The Clerk,
Ekiti State House of Assembly,
Ado-Ekiti.
ILLEGAL PAYMENT OF SALARY TO PERSONAL ASSISTANTS
Audit investigation had revealed that the following appointments, which were made and serviced with public fund, are illegal.
S/NO NAME RANK
1. Rotimi Joel Abiodun P.A/S.A to former Speaker
2. Atoki Oluwaseun P.A to former Deputy Speaker
3. Morakinyo Olusola Ojo P.A to former Deputy Speaker
I want to draw your attention to the provisions of the Remuneration Package for Political, Public and Judicial Office holders in Nigeria, page 34, Section 4.1 (x and xi) in respect of maintenance of members of the State House of Assembly, in respect of Special Assistants and Personal Assistants.
I equally wish to draw your attention to paragraph 4i (xviii) in respect of Legislative Aides, that every member of the House shall be entitled to two (2) Legislative Aides on Grade Levels 08 and 09 and shall be paid by Government through their Principals.
While acknowledging that the Speaker and the Deputy Speaker are entitled to Special Advisers and Personal Assistants, there is no Law providing for Occupants of such Post to continue to enjoy these benefits, when they are no longer in Post.
In the light of the above, you are advised to stop further payment of these remunerations to Officers stated above, white a computation of illegal payments made in the past be made and a recovery made by you and furnish this office with the details of the recovery.
Thanks for your cooperation.
(sgd)
Bayo Ade-Ojo
For: AUDITOR.GENERAL
EKITI STATE”
From the letter reproduced above, it needs no interpretation to know that the appointment of the Respondent vide Exhibit ‘A’ as Personal Assistant to the Hon. Deputy Speaker, Rt. Hon. Morakinyo Adebayo was a political appointment. In fact, Exhibit ‘A’ was addressed to the office of the Hon. Deputy Speaker.
By the said letter, the legislative aids, that is, the Special and Personal Assistants attached to the Speaker and Deputy Speaker cease to hold any office with the resignation of their Principal. Under the present circumstances, the Respondent cannot claim to enjoy an uninterrupted tenure of service. DW1 testified that he was appointed vide Exhibit ‘E’ as Personal Assistant to the incumbent Deputy Speaker then, the Rt. Hon. Adeoti Saliu.
The Respondent has not applied to be appointed Personal Assistant to the office of the Deputy Speaker. There is no such application before the court and even if there was one, such application has to be rooted through the Civil Service Commission of the state where upon employment, he becomes the Personal Assistant. In any case, Exhibit ‘A’ is “Letter of Appointment as Personal Assistant to the Rt. Hon. Deputy Speaker.” Which strengthens my belief that the appointment is political which is for a short tenure and not permanent and pensionable as Civil Service appointment which continues until retirement or resignation from office. The Respondent therefore by Exhibit ‘A’ cannot claim to be permanent Personal Assistant attached to the office of the Rt. Hon Deputy Speaker “The interpretation of Exhibit ‘A’ by the learned trial judge is a clear misconception of the case of the parties before it and has occasioned a serious miscarriage of justice and I so hold.
The claim that the Respondent was appointed by the Government through the office of the Secretary to the State Government is of no moment as it does not make the appointment of the Respondent permanent and pensionable. Infact, appointments are made by the Government through the office of the Secretary to the State Government.
This is a routine procedure as the appointee is paid through the coffers of the Government.
Assuming in the instant case, the Respondent was appointed Personal Assistant to His Excellency, the Governor, and the election of the Governor was annulled by the Election Petition Tribunal and the nullification of the election was confirmed by the Appeal Court. Would the Respondent as Personal Assistant refuse to go with the Governor that brought him in because his appointment was made by the Government and would therefore remain in office to serve as Personal Assistant to the incoming Governor?
This I may say is a misconception of the provisions of the Remuneration Package for Political, Public and Judicial Office Holders in Nigeria, and true in all respect, the Respondent has not been sincere on his stand.
As said from the beginning in this judgment while resolving the 1st issue for determination which I also adopt in resolving this issue that the learned trial judge misconceived the case of the parties before him and went on to decide the case as misunderstood. His findings are not solidly and firmly supported by evidence adduced before him. The learned trial judge drew wrong inferences and therefore came to a wrong conclusion that the Respondent’s appointment is continual having been appointed by the Government. The misunderstanding of the case submitted by the parties is a fundamental vice liable to render the decision indefensible and unsustainable and I so hold. It is a serious error that attaches to the judgment. See ADEJUGBE vs OLOGUNJA (SUPRA).
It is observed that the Appellants’ counter claimed before the trial court for the refund of One Million, Eight Hundred and Forty One Thousand, One Hundred and Seventy Nine Naira and Twenty Three Kobo (N1, 841, 179:23) and the sum of Two Hundred and Ten Thousand (N210, 000:00) being money collected by the Respondent as salaries and impress for the months of August, 2007 to January, 2009.
The counter claim was dismissed by the lower court and there is no appeal against the said dismissal by the Appellants. Therefore, the arguments canvassed by the Respondent in his brief of argument on the counter claim goes to no issue. It is hereby discountenanced.
Based on the foregoing, this issue is also resolved in favour of the Appellants against the Respondent. Having resolved all the issues in favour of the Appellants, the appeal therefore succeeds and it is hereby allowed. The decision of the learned trial judge in suit No. HAD/43/2009 delivered on the 18th January 2010 is hereby set aside. There shall be costs of this suit which I assessed at N50, 000:00 only in favour of the Appellants against the Respondent.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother Uwani Musa Abba Aji, J.C.A.
His Lordship has comprehensively dealt with the issues raised in this appeal, I adopt his reasoning and conclusion arrived at in resolving all the issues in favour of the Appellants. The appeal is also allowed by me. I abide by the order made as to costs.
HARUNA M. TSAMMANI, J.C.A.: I had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A.
My lord has adequately covered and resolved the pertinent issues that arose for determination in this appeal. I wholeheartedly agree with the reasoning and conclusions reached at by His Lordship. I do not have anything else to add. Consequently, I also find that the appeal has merit and is hereby allowed. The decision of the lower court in Suit No: HAD/43/2009 delivered on 18/07/2010 is hereby set aside.
I abide by the order as to cost.
Appearances
Dayo Akinlaja, Esq, Hon. Attorney General, Ekiti State, with him, Julius Ajibare, Esq, ACLO,For Appellant
AND
Ademola Adeyemi, EsqFor Respondent
