MRS. A.O. ADEBAYO v. THE VICE CHANCELLOR, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE & ANOR
(2019)LCN/13532(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/AK/265/2017
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MRS. A. O. ADEBAYO – Appellant(s)
AND
1. THE VICE CHANCELLOR, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE
2. FEDERAL UNIVERSITY OF
TECHNOLOGY, AKURE – Respondent(s)
RATIO
WHERE AN OBJECTION IS RAISED TO THE COMPETENCE OF AN APPEAL
An objection is raised to the competence of an appeal as an entity or in its entirety on the legal validity of or competence of an act which determination of the said objection would terminate the entirety of the action and render abortive the effort at activating the exercise; this may be as in the bringing of an appeal.
It is usually on the Ground that the action is incompetent or that the Court has no jurisdiction.
However, where it is intended to only scuttle or invalidate a part of the process such as a Ground(s) of Appeal as herein, the proper thing to do is to come by motion for the striking out of the offensive Ground(s) of Appeal. PER DANJUMA, J.C.A.
WHETHER OR NOT AN APPELLANT CAN CIRCUMVENT THE LAW ON ADMISSIBILITY OF PUBLIC DOCUMENT ON THE SPECULATION THAT THE RESPONDENT HAD DENIED THE DOCUMENT
It is when refused or if refused for malice or abdication that the Appellant could prove those facts to the Court and pray for the admission thereof and call for weight to be attached. Indeed, the Appellant could pray for a subpoena and its production and testificadum on the Respondents official in custody of the document thus obviating certification. That not having been done, I do think that the Appellant cannot circumvent the law on the admissibility of public document on the speculation that the Respondent had denied the document and would therefore, not be expected to certify same. The way of the law and justice may be slow and inconveniencing, but certainly it gives greater assurance in the search for truth. The inadmissible Exhibit L rightly expunged could not have corroborated the conflicting evidence led on the allegation of forceful driving out from office. Issue 2 is resolved against the Appellant. PER DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court, delivered by Hon. Justice A. N. Ubaka, sitting in Akure, wherein the learned trial judge refused the reliefs sought by the Appellant. The judgment spans pages 352 to 382 of the record of appeal.
The Appellant being dissatisfied with the judgment filed the Notice of Appeal dated 26th of January, 2018 contained at pages 408 to 412 of the records of appeal.
BACKGROUND FACTS/CIRCUMSTANCES OUT OF WHICH THE APPEAL AROSE:
The Appellant is a staff of the 2nd Respondent and she had served in diverse capacities until 9th of April, 1999 when she was employed as the Director, Academic Planning Unit of the 2nd Respondent an appointment which was deemed confirmed three years later until the retirement age of 60 years later enhanced to 65 years due to her astute performance which the University commended via correspondence written to her on several occasions.
The Appellant held that position until the 19th day of February, 2013 when she got an internal memorandum from the Registrar of the
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2nd Respondent asking her to disengage as the Director of Academic Planning in the University with effect from 28th of February, 2013.
Vide the said internal memorandum, it was indicated that the Appellant was disengaged having spent almost fourteen years as the Director of Academic Planning in the University which purportedly translated to having served beyond the 2nd term she was entitled to in that office going by an alleged reviewed policy of the University Governing Council.
At a meeting on the 19th of February, 2013, the Appellant was given an approval by the 1st Respondent to travel to the United States of American to attend a scheduled training organized by the Nigerian University Commission.
The Appellant proceeded on the trip as approved by the 1st Respondent but on getting back on the 5th day of March, 2013, the lock to her office had been changed and her personal belongings moved out thereby exposing her to loads of embarrassment and scorn. The 1st Respondent confirmed that he was responsible for the change of the lock and on the 14th day of March, 2013, the Appellant got an Internal Memorandum asking her to proceed on compulsory
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leave pending the time a suitable office could be provided for her.
After sundry entreaties for the disengagement to be rescinded had failed, the Appellant was constrained to file this action to seek appropriate redress at the lower Court. The reliefs sought by the Appellant are as contained in paragraph 27 of the statement of facts in this case.
In proof thereof, the Appellant at the lower Court gave evidence in person as PW1; called one Dr Akintunde Adeoye as PW2 and tendered a number of documents admitted in evidence as Exhibits. On their own part, the Respondents called one witness who also tendered some documents alongside his testimony.
On their part the Respondents filed the Respondents Brief of Argument dated 20th May, 2018 and filed on 21 -2 -2019, by which by their learned counsel, Ighedosa Imadegbelo, Esq of Igbodalo Imadegbelo (SAN) & Co, the respondents raised a preliminary objection on two grounds.
The Respondent, however, raised 2 (Two) issues for determination in the event that the preliminary objection was not successful.
The objections are thus:-
1. That the appeal is an academic
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exercise.
2. That the particulars of error of ground 6 are incongruous with the ground of appeal in the Appellants Notice of Appeal.
The Appellant filed a Reply Brief in response to objection and the Respondents brief.
I shall take the objection first, being the practice.
On what is tagged as objection No. 1, on the Appeal being an academic issue.
The learned Respondents counsel, referring to Ground No. 2 of the Notice of Appeal as contained at page 409 of the record of Appeal contended that it raises the issue of retirement age of the Appellant from the services of 2nd Respondent. That Appellant had pleaded in paragraph 3 of the statement of facts at page 4 of the record of appeal that her Appointment was and retiring age indicated to be 60 years, which was later enhanced to 65 years. The counsel reasoned that if the Appellant was already 60 years in 2013 at the time of the Governing Councils decision at its 100th statutory meeting on Tenureship for Directorate System in the Institution (Exhibit O or P) then at the judgment, she was already about 65 years and thus making
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the suit and Reliefs sought academic as they were no longer grantable as the judgment would be nugatory and unenforceable, Appellant then over 65 years of age.
The learned counsel pointed out that the Appellant was still in the employment of the 2nd Respondent receiving till date the same salary, having official car and all other emoluments and perquisites of her former office as Director of Academic planning unit of the 2nd Respondent. That on retirement at the age of 65 years in 2018, the enforcement of reliefs of re-instatement of the Appellant to her former office and payment of salaries, allowances and emoluments and injunction claimed would have become academic and stale. That the Courts do not act in vain as the reliefs sought cannot be implemented after retirement upon reaching the statutory retirement age. A. G. Anambra State v. A. G. Federation (2005) 9 NWLR (pt. 931) page 572 at page 607 on the position of the Supreme Court not to embark on advisory or abstract/academic opinion relied upon. On the second limb of the objection that the particular of error of ground 6 are incongruous with the ground of appeal.
Arguing on this limb of the
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objection, it is contended that the particulars of error of the ground of appeal must be construed together with the ground of appeal to ascertain the complaints/grievances of the Appellant, relying on Ibrahim v. Mohammed (2003) 6 NWLR (pt 817) pages 615 at 639; Peter v. NNPC (2010) 8 NWLR (pt 1195) page 173 at 184 relied upon.
That the particulars of evidence related to the ancillary reliefs that were not granted. That they rendered the ground incompetent and which ground should be struck out.
That ground 6 and its issue 3 be struck out. Eresia Ke v. Orikoha (2010) 8 NWLR (pt.1197) pg. 421 at 442; UBA Plc v. ACB Ltd (2005) 12 NWLR (pt. 939) page 232.
That the appeal be dismissed for want of jurisdiction.
In response to the preliminary objection, the learned counsel for the appellants submitted that it cannot qualify as a preliminary objection to the appeal since there were other surviving Grounds of Appeal other than the Grounds 2 and 6 sought to be impugned by the objection.
That all the Respondent would have done is to have filed a motion asking for the striking out of the Grounds of Appeal being challenged.
That the
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so called preliminary objection was out of place, invalid and liable to be discountenanced peremptorily. FGN v. INTERSTELLA COMMS LTD (2015) 9 NWLR (pt 1463) 1 at 26; NEPA v. Ango (2001) 15 NWLR (pt 737) 627 @ 645- 646 and Odunukwe v. Ofomata (2010) 18 NWLR (pt 1225) 404 @ 423 on the law that a preliminary objection cannot succeed when there is one or more Ground of Appeal; when there is one or other grounds of appeal that can sustain the Appeal.
The learned counsel then proceeded on the merit of the preliminary objection seriatim.
Starting on the 1st limb, it was contended that it was based on a faulty premise as the Ground 2 does not raise the issue of retirement Age of the Appellant from service of 2nd Respondent, but rather whether or not the contract of employment of the Appellant was for a fixed period.
That the surreptitious raising of the retirement Age factor has no nexus with the ground of appeal No. 2 and should be discountenanced.
That that issue in the objection was unrelated to the Ground of Appeal and should be jettisoned. Ezenwa v. JC Ltd (1994) 7 NWLR (pt. 356) 292 at 305; Adebayo v. Ighodalo
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(1996) 5 SCNJ 23 @ 34. That in the same token, issues not arising from the judgment appealed against, if raised would be irrelevant and not to be considered by the Appellate Court; Bello v. Jallo (1999) 4 NWLR (pt 598) 189 @ 195; UBN Plc v. Ayo Dare & Sons Ltd (2000) 11 NWLR (pt 679) 644 at 656.
That the Respondent was approbating and reprobating as there was no evidence of the retiring date of the Appellant.
Yet Respondent in one breach stated that Appellant had retired in 2018, at attaining 65 years of age, and in another breach said the Appellant was still in the service of the 2nd Respondent till date; refers to the cases of Agbaje v. Fasola (2008) ALL FWLR (pt. 443) 1302 at 1337; Nwole v. Iwuagu (2006) ALL FWLR (pt. 316) 325 at 345.
The learned senior counsel proceeded to contend that even if this appeal cannot be determined before the retirement of the Appellant from service, the fact still remains that the Appellant was entitled to be heard in respect of the other reliefs sought outside the re instatement back to the office as the Director of Academic planning unit of the university i.e claims for Allowances, Salaries, other
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emoluments and damages.
That there was no basis for the objection that the appeal was an academic exercise. The case of Eligwe v. Okpokiri (2015) 2 NWLR (pt. 1443) 348 at pages 374- 374 per Ngwuta, JSC referred to show that the cessation or expiry of the period of service of the Appellant was not prejudicial to the validity of the appeal on other remedies available.
On the second limb, it is contended that the complaint of the Appellant was against the refusal to grant the remedies that are ancillary to the declaratory relief sought; that they are to be granted as consequential reliefs and therefore asking for them was not incongruous to the Ground of Appeal No. 6. There was nothing incongruous between the ground 6 of the Notice of Appeal and the particulars thereof. That the Appellant, by Grounds 2, 3 and 5 of the Notice of Appeal has appealed specifically against the declaratory reliefs.
That the Respondents issue 2 is based on Ground 6 and thus indicating that the Respondents are not misled as to the purport and intendment of the ground and the particulars thereof.
That the Respondents have not suffered any miscarriage of
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justice by the manner of the couching of the Ground of Appeal.
That the objection was an undue reliance on technicalities of law; that the Courts have jettisoned that stand for substantial justice Aliu Bello v. AG Oyo State (1986) 5 NWLR (pt. 45) 828 @ 886 and The State v. Gwonto (1983) 1 SCNLR 1442 at 180 were relied upon.
The learned silk, then urged us to dismiss what he further called the so called preliminary objection of the Respondents as by the clarion call of justice dictated in this appeal.
I shall without hesitation agree with the Appellants learned counsel that the so called preliminary objection had no anchor and was in itself an inapplicable legal mechanism in the instant appeal.
Clearly, there are 6 (six) Grounds of Appeal and the grievance tagged preliminary objection is raised against only 2 of the Grounds of Appeal to wit Grounds 2 (two) and 6 (six) thereof.
An objection is raised to the competence of an appeal as an entity or in its entirety on the legal validity of or competence of an act which determination of the said objection would terminate the entirety of the action and render
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abortive the effort at activating the exercise; this may be as in the bringing of an appeal.
It is usually on the Ground that the action is incompetent or that the Court has no jurisdiction.
However, where it is intended to only scuttle or invalidate a part of the process such as a Ground(s) of Appeal as herein, the proper thing to do is to come by motion for the striking out of the offensive Ground(s) of Appeal.
The learned counsel for the Appellant, is therefore, right when he so submitted and on the case law authorites of F. G. N. v. Interstella Comms. Ltd, NEPA v. Ango; Odunukwe v. Ofomata (supra) preliminary objection cannot be taken when there is still subsisting at least one Ground of Appeal upon which the appeal may be determined.
I have appreciated the contending arguments of both sides in this matter, and think that there is no preliminary objection, competently and appropriately raised before this Court. Arguments of the respondent on that score is accordingly jettisoned or discountenanced.
In case, I am wrong I would proceed to opine that the Respondent was ambivalent and prevaricatory by its inconsistent stand in the
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address relating to the objection on Ground 6 when he contended that the declaratory relief could not be granted because it was ambiguous and did not have its particulars arising from the Ground and yet the fact of raising its own issue two from the Ground 6 complained against in objection, surely shows the inequitable and legal impotence of the objection raised.
It is also for this reason that I agree with the Appellants learned counsel when he aptly submitted by reproducing the immutable words of the Supreme Court per Oputa, JSC (blessed memory) in Aliu Bello & Ors v. Attorney General, Oyo State (1986) 5 NWLR (pt. 45) 828 at 886 thus;The picture of law and its technical Rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in form and formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking ones way between pit fails of technicality; law and all its technical rules ought to be handmaid of justice—-”
And the State v. Gwonto (1983) 1 SCNLR 142 at 160 per Eso, JSC of blessed memory
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thus:-
The Court has for some time now laid down as guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities lead to injustice.
What this means is that the ancient wagon of technical justice has left the train station and for good should not return after disembacation there from. See also our unreported decision in Appeal No. CA/AK/262/2017 BETWEEN: Mrs. Olufemi Adeyemi Foluso v. Enterprise Bank Ltd delivered on 7th June, 2019 per Danjuma, JCA.
I endorse our stand relying on the firma terra position of the apex Court and disallow the so-called preliminary objections erected upon technicality thereat:
It is a non sequitur in this case; and accordingly the so-called objection fails and is dismissed, even on the merit, thereof.
THE SUBSTANTIVE APPEAL ON ITS MERIT
ARGUING THE ISSUE, ONE.
The Appellants counsel submitted that the learned trial judge was wrong to have held that the disengagement of the Appellant as the Director of Academic planning unit of the Respondents was right. That the
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Appellant was specifically appointed as Director of Academic planning and was a tenured appointment to cease only at age 60 years, subject to good behavior.
That Exhibit U ie (the Federal University of Technology Akure 2007 Reviewed Regulations Governing the Conditions of Service of Employees on CONTISS 06/CONUASS 01 and above) the appointment of staff on HATISS 06 and UASS above (covering the cadre of the Appellant) shall be to retirement age of 60. That it was not disputed that the retirement age was subsequently reviewed to 65 years via the universities (miscellaneous provisions) Amendment Act, 2012.
That it is not in the Regulations nor the University Act or the letter of Appointment that the Appellant could be disengaged from her employment as Director of Academic Planning Unit by a policy of the University. That in the circumstances, the Respondents had no modicum of right to disengage her from that office on the premise of a reviewed policy.
The learned counsel reminded the Court of the position of binding contracts and that the parties are bound by its terms and conditions, including the rights and obligations;
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otherwise a breach would have been constituted. Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt 289) 512 at 560 relied on.
That extraneous consideration brought in the nature of the reviewed policy was not intrinsic but extrinsic to the statutory terms and contractual terms of the employment; Layade v. Panalpina (1996) 7 SCNJ 1 at 14 relied on to contend that extrinsic evidence cannot be admissible to add, vary, subtract from or contradict the terms of the written instrument.
The learned counsel specifically argued that the Exhibit D or P (being the same document which the Appellant was disengaged from office, showed that the reviewed policy in question predicated on a paper considered at the 87th Statutory meeting of the university held on 3rd June 2009.
The learned counsel quoted from the document ie Exhibit J thereof at item i. 11 (contained at page 26 of the record whereat the tenure of Directors appointed before the Reviewed policy is shown to be exempted to avoid litigation; but to be guided by their instruments of appointment as they will be phased out nonetheless to give way to the applicability to New Directors to be
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appointed.
That there was no basis for the extension of the reviewed policy to the Appellants case by the trial judge taking into account the proceedings of council ie Exhibit J.
That it was beyond argument that the Appellant was given a specific and non transferable office up to retirement age. That she could not, by that fact of specific employment, even be redeployed.
That the Respondents had not by their contract been endowed with the right of redeployment, as done. That the power to transfer not stipulated for this specific office appointed to, the case law authorities for the power to transfer were inapplicable; as authorities can only be precedent, if the facts and the circumstances of those matters coalesce with of the matter they are sought to be applied to. Clement v. Iwuanyanwu (1989) NWLR (pt. 107) page 39 at 54 par D – E referred.
That since it was common ground between the parties that the employment enjoyed statutory flavour, Appellant could not be dislodged from the office appointed to, except for want of good performance as stipulated in the contract of employment and only after compliance with the
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laid down procedures for disengagement.
The learned silk refers to the provisions of Section 15 of the Federal Universities of Technology Act to contend that the Appellant could only be removed from her office or appointment upon satisfying the procedure stated therein and which was not done in this case at hand.
Counsel reminded that the only witness of the 2nd Respondent admitted in cross examination that there were no allegations of misconduct against the Appellant; and that therefore, injustice and nonjustification for the redeployment was apparent. That it was indubitable that the tenure of the Appellant in that office was brought to an end before retirement without being found wanting.
That the refusal to reinstate the Appellant to her office as Director Academic Planning was wrong, as she enjoyed statutory flavour. That she should be reinstated back. Relies on Alhassan v. A. B. U. Zaria (2010) ALL FWLR (pt. 538) 962 at 1002; UNTHMB v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 40 par SC G.
The learned senior counsel, Akinlaja, SAN proceeded to argue that the learned lord of the trial Court should not have had any difficulty
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in ordering the reinstatement of the Appellant at all as malice had been shown; infact motive for the redeployment from the office of the Director Academic Planning and particulars thereof 24 of the statement on oath of the Appellant shown. See page 37 of the Record of Appeal. That this was not contradicted or challenged at cross examination and should have been acted upon.
That its self reversal of the stand of the university in respect of the application of the reviewed policy, ought to have been held by the trial Court as further proof of malice.
That the issue one be resolved in favour of the Appellant.
In response by its issue and to the Appellants issue No. 0ne but couched thus;
Whether or not the lower Court was right in holding that the redeployment of the Appellant by the 2nd Respondent from the office of Director of Academic Planning Unit to head Industrial Training Unit of the 2nd Respondent was not in breach of the Appellant contract of Employment with the 2nd Respondent.
The Respondents learned counsel contends that there was no breach of the Appellants contract of employment by the said
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redeployment. Quoting paragraph 2 of the letter of Appointment dated 9th April, 1999 (Exhibit A which reads in part thus;
The Appointment is subject to the provisions of the universitys laws, statutes and ordinances made, the regulations governing the conditions of appointment of senior staff made by the Universitys Council from time to time.
The learned counsel submitted that the said paragraphs of the letter of Appointment (Exhibit A or M (as tendered by the parties respectively) makes the appointment of the Appellant as the Director of Academic Planning Unit of the 2nd Respondent amendable to both the existing and future laws, statutes, ordinances and Regulations of the University from time to time. Relying on Alhassan v. A. B. U. Zaria (2011) 11 NWLR (pt 1159) page 417 at 457 and the page 1120 of Shrouds Judicial Dictionary of words and phrases (Fourth Edition) by John S. James for the meaning of the phrases subject to and from time to time respectively.
That the chapter 2, Article I of the revised or reviewed Regulations
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Governing the conditions of service of senior staff (Exhibit R or U) corroborates the express provision of paragraph 2 of the letter of Appointment dated 9th April, 1999 ie Exhibit A or M.
That the Respondents had the discretion to make policy directives and they had so made in respect of the redeployment.
That the letter of appointment and the Regulations Governing the conditions of service of senior staff cannot be construed in isolation, as the entire documents must be construed as a whole; relies on Baytide (Nig.) Ltd v. Aderinokun (2014) 4 NWLR (pt. 1396) page 164 at 196 -197.
Contends that a party cannot choose which of the content of a document tendered to apply. That he cannot chose the favourable and disassociate with the unfavourable portions. AG Enugu v. Avop Plc (1995) 6 NWLR (pt.399) page 90 at 120 121 per Tobi, JCA, as he then was.
The learned counsel referred to Exhibit D or P as the extant policy Directives of the University on Tenureship for Directorate System in the University, saying it had abrogated the Exhibit J or O as the University had
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the powers to so do. That the internal memorandum Exhibit D/P was the new binding policy of the Respondents on the Directorate beyond 10 years and hence the redeployment.
It was also submitted that by Section 6(1) o the Federal Universities of Technology, Act, 2004 the 2nd Respondents Governing Council is charged with the responsibility of general control, superintendence of the policy, finance and property of the university.
That the implementation of the Governing Councils Policy Directive leading to the redeployment of the Appellant was made pursuant to the statutory power of the council as contained in Section 6(1) of the Federal University Act; on the authority of 6th Edition of the Oxford Advanced Learners Dictionary, page 980, the deployment simply meant to move somebody or something to a new position or job that the transfer or secondment of appellant to head the Industrial Training Unit of the University was based on the powers vested in the Governing Council by the Universitys Act, 2004. Tatuggoronno v. Gotom (2002) 4 NWLR (pt. 757) 453 at 491 per Mangaji, JCA (of blessed
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Memory) relied on to show that secondment meant temporary transfer; and like transfer in administration is aimed at boosting the efficiency of an organization by distributing and utilizing the available manpower resources in the most efficient and gainful manner.
That literally, redeployment has the same meaning with transfer or secondment in employer/employee relationship as in this case.
That the reviewed policy Directive of the Governing Council of the University made on the 31st of January, 2013 at its 100th Statutory meeting (Exhibit D or P) is covered by the Universitys Regulations Exhibit D or P.
That the redeployment was an ordinary incident of service and did not result in the alteration of any of the conditions of service to the disadvantage of the Appellant.
That it was a normal feature of government service and no Government servant like the Appellant can remain in a particular place or post unless the appointment itself is to a specified non transferable post, which is not the position, herein. Reference is made to the Indian case of Yaradha Rao v. The State of 26-
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8 – 1996 (apt but without citation provided) and the learned trial judges appraisal in the line of legal text and decisions relied on.
The learned counsel also argued that the deployment did not affect adversely the Appellants salaries and other conditions of service, which remained the same. That there was no demotion as contended by the Appellant and no breach of the contract of employment was proved, as none was done; the Appellant still being a staff of the University earning her salaries allowances and other benefits attached to her former office as Director of Academic Planning Unit as shown in the University Regulations letter Exhibit S OF 7TH March 2013 and Appellants pay slip Exhibit T.
That the Appellant in any case, cannot now complain that her redeployment was not validly made by the Respondents. That the redeployment had become mutual. Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (pt 145) page 506 are 528 per Karibi White, JSC.
In a rather prolific and relishing manner, the Respondents learned counsel proceeded to from paragraphs
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5.16 to paragraph 5.21 on pages 20- 27 of the Respondents Brief of Argument on the probative value of the expunged Exhibit L ie the Internal Memorandum of the Federal University of Technology, Akure dated 27- 2 – 2013, being an uncertified public document contrary to Section 104 of the Evidence Act, 2011, and Section 90 (1) (C). Anatogu v. Iweka II (1995) (pt 415) 547 @ 572 and Bob Manuel v. Woji (2010) 8 NWLR (pt 1196) page 260 at 273.
That the lower Court had no discretion in the expungment of the inadmissible public document, not having been certified. Tabik Investment Ltd v. GTB Plc. (2011) 17 NWLR (pt 1276) 240 at 262 per Rhodes Vivour, JSC.
That the uncertified public document was challenged and yet the maker was not called to give evidence on the document, but tendered through the Appellant and when the maker was one Okuofo Michael Senior Workshop (supervisor carpentry) not called and no weight could be attached to it.
The learned counsel relied on the authorities buttressing the admissibility of public documents or any documents for that matter as in Omega Bank (Nig.) Plc v. O. B. C Ltd.
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(2005) 8 NWLR (pt 928) 547 at 582, Shanu v Afribank Nig. Plc. (2002) 7 NWLR (pt 795) 185 at 222, Buhari v. INEC (2008) 19 NWLR (pt 1120) 246 at 415 per Tobi, JSC.
On the above, the learned counsel faulted the stand point of the Appellants learned counsel that a denial of the Exhibit L made by the Respondents mandated the Court to consider the Respondents as having withheld evidence pursuant to Section 167 (d) of the Evidence Act rather than be guided by Section 89(e) 90(1)(c) 102 and 104 of the Evidence Act, 2011.
That a denial of authorship is not a ground for admissibility of a public document ie the expunged Exhibit L. That admissibility was a condition precedent for the invocation of the weight to attach consideration. That the applicability of Section 167 (1) (d) of the Evidence Act, 2011 was foreclosed. That the Appellant was not removed as a disciplinary measure and the provisions of Section 15 of the Federal Universities of Technology Act, 2004 for removal was inapplicable as misconceived by the Appellants counsel.
Learned counsel for the Respondents also faulted the claim in address by
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the Appellant that she was forced out of her office in an embarrassing manner of breaking into the office even before the date given to her as the redeployment date. That the assertions in respect of date of Notice to vacate and how it was done flew in the face of the evidence led.
That the learned trial judge rightly found in favour of the Respondents and against the Appellant.
We have been urged to resolve this issue against the Appellant and in favour of the Respondents.
In reply the Appellants counsel contended that the authorities relied on could not avail the Respondents as his client was appointed to a specified non transferable post by appointment and that a vested right cannot be changed.
RESOLUTION
I must say that both sides of the divide by their learned counsel have been most ingenious and insightful to the Court in their submissions; however, I do not have any difficulty in finding that the first port of call in Employment contracts is the agreement of the parties itself.
In this case, it is the letter entitled, offer of appointment. It is as contained on page 11 of the record of appeal and which was
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tendered as Exhibit.
The said letter of appointment provides in its paragraph 2 thereof that:
The appointment is subject to the provisions of the University Law, statutes and ordinances, made hereunder and to regulations governing the conditions of appointment of senior staff made by the University Council from time to time.
The Appellant had argued that her appointment was to a specific and a non transferable post until the age of retirement at 60 years as provided in the letter appointment. She views the deployment to another office as a demotion and breach of the express contract between the parties. The Respondents thinks otherwise and the trial Court had agreed with the position of the Respondent that there was no breach of contract and that she was not entitled to any of the reliefs claimed.
There is no doubt that the contract of employment is the document to be construed and the Court and the parties are both bound by the terms and conditions thereof. As neither party shall depart therefrom, so the Court must give effect to the agreement of the parties and shall not rewrite the same.
The contract of
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employment between the parties herein as shown in its paragraph 2 reproduced (supra) contains the words subject to among others, regulations governing the appointment of senior staff made by the university council from time to time.
As aptly referred to in this instance, the case of Alhassan v. A. B. U. Zaria (supra) is to the effect that the phrase subject to is significant and is used in statutes to introduce a condition, a proviso, a restriction and indeed a limitation. The provisions of the section to the section referred to which is not intended by the provisions of the later.
It is clear from the above meaning that the Exhibit A appointing the Appellant was not an island without any limitation. It is subordinated to the conditions of service of senior staff appointed by the Respondents as may from time to time arise.
The apt meaning of from time to time as a phrase as seen in the strouds Judicial Dictionary of words and phrases page 1120, 4th Edition is apposite in coming to the realization that the appointment of the Appellant to the specific office of a Director until
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retirement age of 60 years is altered by the conditions applicable to senior members of staff of his cadre as may from time to time be made by the employer.
The letter of Employment Exhibit A or M therefore is in consonance with Exhibit R or U on the reviewed conditions governing the conditions of service of senior staff. Policy decisions as made in Exhibit D or P – Governing Councils decision on Tenureship for the Directorate System made at its 100th statutory meeting of 31st January, 2013 that led to the redeployment of the Appellant or transfer from the office of the Director Academic Planning Unit to head the Industrial Training Unit was pursuant to the enabling laws, statutes, ordinances and Regulations in existence at the material time.
The Respondents learned counsel is on a strong platform when he argued that there was nothing in the letter of appointment that prohibited the redeployment of the Appellant as a Director to another Unit or department.
At least the letter of employment Exhibit A did not prohibit, but recognizes the
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power of the respondent to act from time to time by its policies in relation to the Employment of the Appellant.
The Respondent may have prevaricated in its decision in the application of the Tenureship of Director, but having finally settled on the conclusion that a service as a Director for more than one term of five years and the subsistence of second term to be exhausted when it reaches a total of 10 years and with the effluxion thereof when a period beyond 10 years has been served as in the Appellants case who has served a period of 14 years cannot be taken to be a malicious breach of the terms of engagement.
At least the Appellant was not disengaged completely from the service before the retirement age of 60 years stipulated in the letter of employment.
The Appellant appreciated the power and right of the Respondent to vary or make or apply revised conditions of service to her contract of service, hence the statement of facts in evidence, pleadings and address by her learned counsel that the retirement age was enhanced to 65 years due to her and for her statute performance for which she was commended on several occasions. Can the
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Appellant deny the policy Directive of the 2nd Respondent enabled by Section 10 of the Universities of Technology Act, 2004 and yet claim the benefit of the implementation of the increase of retirement age 65 years? surely, the Respondents learned counsel is right in arguing that the Appellant cannot take the benefits and disown part of the terms and conditions of service as altered.
The decision in Baytide Nig Ltd v. Aderinokun (2014) 4 NWLR (pt 1393) page 164 at 196-197 to the effect that a document must be construed in whole and not partly is applicable.
The Appellant cannot associate herself with the portion of Exhibit A by which she was appointed relating to the specific office of a Director Planning in the Planning Department in the Vice Chancellors Office and disassociate herself with the portion relating to the circumscription of the posting to the exercise of rights and powers granted by the University Laws, Police Regulations etc as may be exercised from time to time.
It is instructive that the power of the employer was not prohibited in any respect and more so that the Appellant was posted or
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transferred/redeployed with her salaries, entitlement and perquisites like the official car being used in the former office still attached to her and specifically indicated in the internal memorandum of the Registrar.
The Appellant in her Brief of Argument indicated that she had served in diverse capacities before the specific office from where she was redeployed after serving thereat. What appears to be a mischief is that the letter exhibit A is not crafted in the manner of a typical civil service appointment where an employee is appointed as a Director and to be posted to a particular Department or Unit subject to reshufflement or redeployment.
In this wise, a person is clearly understood to have been first appointed simply as a Director. The movements and service where ever within the Government service or same institution at various branches enjoying same accrued status, is not gain said. I do not understand why the Appellant thought otherwise in her case. The motive of the Respondents will not invalidate their action taken in accordance of the terms of the Exhibit A.
The Respondents had in Exhibit
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D/P exempted the Appellant from the application of the reviewed policy Directive and positively too by redeploying her without a loss of benefit inspite the cessation of her Directorship status by the reviewed Policy Directive.
The Federal Government white paper of 2004 had recognized the discretion of the individual universities to treat the issue of the Directors who have served beyond 10 years as they deemed fit in their circumstances. Exhibit A and U have been ultimately modified by Exhibit D.
The decision was just and fair and the Appellants half admission of the power of council to make policy, is nothing but evasive. In any case, it is the document of employment that shall be construed and not the perception and wish of either party as to what it should be. It is the Courts interpretation of this clear contract that shall be interpreted liberally so as to effect the intention of the parties that is relevant.
A reasonable interpretation of an agreement will not be such that will foist an employee in perpetuity on an employer and without the exercise of discretion where a liberal
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interpretation of freedom of labour relations would otherwise be envisaged.
Can it for once be envisaged that the Appellant, as an employee, for instance will be forced against her will to serve as a Director in the Respondents Employ even when she does not want to?
The admission by the Respondent in cross examination that the letter of employment did not state that policy shall be made applicable but only rules and ordinances of the University befogs the truth and denies the fact that Rules and Regulations made by the University Council from time to time includes its extant and applicable resolutions and policy Directives on senior staff which the Directors of over 10 years service on that status have been captured, in Exhibit D.
The learned trial judge was on a firm Ground when it held that the power to amend the Regulations or Laws or Statute of the University Act via its council had provided the justification for the reviewed Policy and Action of Redeployment.
The acts of the Respondent was not unlawful nor illegal. It was justified and within its authority and discretion.
If I must say
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more, I would add that the acceptance of payment of salaries on the new posting which in any case is stated by the respondents Registrar as still being a planning job is sufficient consolation to the Appellant; even if it is a mockery depicting that the Appellant prefers a planning job. The Head of Planning Unit, nonetheless does a planning job. The Directorship having ceased, can the Headship in a planning unit on same salary and benefits not assuage? The insistence drives home the reasons for the change introduced by the policy Directive.
I think I should stop here. A consideration of the other complaints against the trial judges alleged endorsement of an alleged forceful ejection from the locked office; rejection of an exhibit by expurgation from the record are of no utility to the issue number one herein raised, but have however been properly and rightly addressed by the trial judge.
The Respondents learned counsels Address on those matters are apt and correct in law.
Issue number one of the Appellant is resolved in favour of the Respondent and against the Appellant; so also its related version in
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the issue number one of the Respondent is resolved against the Appellant and in favour of the Respondent.
From the above, it is obvious that issue number 2 of the Appellant has been resolved.
Being a penultimate Court, I shall proceed, nonetheless.
ISSUE TWO
It was submitted that the trial judge was not right in holding that the Exhibit L was a public document and needed to be certified when Defendant/Respondent had denied that it was from them. That the Court ought to have held that posture of denial to have amounted to withholding of evidence.
That Exhibit E, the letter to handover was given to the Appellant on 20/2/2013 and to handover on 21/2/2013, whilst before then, the door was forced open and lock changed as shown in Exhibit L. that Appellant did not have more than 24 hours to prepare handover notes as claimed, but that the issue of 24 hours in any case had nothing to do with the forceful ejection from office.
That the Respondent having denied Exhibit L as theirs, they could not have been expected to certify same and, therefore, the trial Court ought to have admitted
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same and determined what weight to attach to it, as the denial of it was because of its prejudicial effect; that the presumption of withholding evidence contrary to Section 167 (1) (d) of the Evidence Act existed in favour of the Appellant.
The Respondent in their issue 3 globally addressed issues including those raised in issue 2 of the Appellant and to the effect that the Appellant had not specifically proved her claim to the reliefs sought. The contention relating to the forceful ejection or lock out from office had been adequately answered in the resolution of issue one, such that I resolve it in favour of the Respondent. There was no proof of that, upon the evidence led.
The memo Exhibit L was such a document that was by law, required to be certified, being a public document if it must be admissible in Court.
All the Appellant needs to do was to comply with the law by applying for its certification and paying the requisite fees to the officer in legal custody of the document and it shall be certified peremptorily upon the command of the law and as appropriate by the indicia of the name of the certifying officer, his
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official title or rank and date upon signature.
It is when refused or if refused for malice or abdication that the Appellant could prove those facts to the Court and pray for the admission thereof and call for weight to be attached. Indeed, the Appellant could pray for a subpoena and its production and testificadum on the Respondents official in custody of the document thus obviating certification. That not having been done, I do think that the Appellant cannot circumvent the law on the admissibility of public document on the speculation that the Respondent had denied the document and would therefore, not be expected to certify same. The way of the law and justice may be slow and inconveniencing, but certainly it gives greater assurance in the search for truth. The inadmissible Exhibit L rightly expunged could not have corroborated the conflicting evidence led on the allegation of forceful driving out from office. Issue 2 is resolved against the Appellant.
ISSUE 3
On this issue, whether the learned trial judge was not wrong in failing to grant reliefs iv and vii sought by the Appellant Grounds 6 and 7.
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The Appellant verred into encompassing the grievance on the non grant of all other reliefs in addition to the complaint in this issue which relates to the non grant of reliefs iv and vii. Arguments on the other reliefs will be jettisoned as submissions shall not be at large but must be tied and related to the relevant issue as raised freely by the litigant as, in issue 3 herein.
In any case, the resolution of issue one had settled the complaint relating the non grant of reliefs i, iii, iv, v, vi which were rightly and consequentially not granted. The Reliefs ii and v, could not also have been granted.
The Appellant had on this issue traced the role of the Appellant in the meritorious service of the university and the respect and esteem built over the years for excellent performance and the acrimonious and embarrassing treatment metted out to her in adversity, rather than appreciation.
The trauma, stress, embarrassment and scorn, caused and undisputed were founded on for declaratory remedies, injunction both prohibitory and mandatory; and of course damages in compensation and assuage of hurt feeling. Oforlete v. The State (2000) ALL FWLR
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(pt 12) 208, par B – F was relied on in support of the view that evidence not disputed stands uncontroverted and admitted; also Ebeinwe v. The State (2011) ALL FWLR (pt 566) 413 at 424 par D (SC).
The learned counsel for the Appellant had crowned the argument on the issue 3 by reliance on the case of Okonkwo v. Ogbogu (1996) 5 NWLR (pt.449) 420 at 435 par F where the Court held thus-
Even where there has been no physical injury, substantial damages may be awarded to the mans dignity or for discomfort or inconvenience. Where liberty has been interfered with damages are given to vindicate the plaintiffs right even though he has not suffered any pecuniary damage.
It is also not necessary for the plaintiff to give evidence to establish his cause of action to claim any specific amount of damage.
That exemplary damages may be awarded in cases of (1) Oppressive, arbitrary or unconstitutional acts by governments servants
Relies on Odiba v. Muemue (1999) 6 SC (pt 157) @ 170- 171 for this position.
The Appellant proceeded to contend that the Respondents only witness gave
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hearsay evidence not being a member of council of the university and that the Appellants evidence remained unchallenged and ought to be acted upon. Kopek Construction Ltd v. Ekisola (2010) ALL FWLR (pt 519) 1035 at 1077 par as D – E. relied on.
Concluding, the learned senior counsel for the Appellant commended the dictum, immutable indeed of lord Denning at page 177 – 179 of his Book the family story to this Court thus:
Let justice be done. The judges should handle precedent and should also interprete statutes to do justice in a way fitted for the needs of the times in which we live where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail over it. Power must not be abused or misused; it is up to the Court to give remedy when such happens.
Upon the above, it is urged that this Court resolves this issue in favour of the Appellant and to hold that the Appellant was entitled to be granted the reliefs (ii) and (vii) sought to assuage her feelings for
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the underserved treatment meted out to her by the respondents.
In response, the Respondents by their issue 2 in argument on all the points raised by the Appellant rebutted them pointing to the fact that DW1 the only witness of the Respondents was a staff of the university and could competently testify of facts within his knowledge. In seriatim he urged that the issue be resolved against the Appellant.
The case of Kopek Construction Ltd v. Ekisola (2010) ALL FWLR (pt 519) 1035 at 1077 cited by the Appellants learned counsel at page 17 of the Appellants Brief of Argument is apt, as the Supreme Court clearly states that where evidence is unchallenged it should be acted upon, as it constitutes sufficient proof of a partys claim in proper cases.
In the matter on appeal, the evidence of the Appellant on the reliefs sought ie reliefs ii and vii covered by the issue 3 were not unchallenged. They were challenged and not proved.
Indeed, it was also not an appropriate case to award as the Court not been a father Christmas could not have awarded reliefs claimed but which entitlement to had not been
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proved. It would amount to abuse of judicial power.
Indeed, in giving heed to the great admonishment of the great jurist Lord Denning of Blessed Memory in his Family Story, I should state that the learned trial judge had so interpreted the relevant laws, contract between the parties in such manner as to give the interpretation fitted for the needs of the times in which the parties live in the face of the reorganizations and change of policy instituted pursuant to Legislative Authorization and the sheer force of Employer/Labour exigencies in contracts of Employment.
I should also state that all the consequential and ancillary reliefs flowing from the main claim which had failed per force were rightly dismissed. What is more, the complaint and reliefs anchored on compensation or damages and injunction for harassment, odium, scorn and prevention from entry into the office, to me is an ingenious way of bringing an action on lock out to constitute it as a cause of action for the trial National Industrial Court to adjudicate.
A careful examination of the complaint and evidence and the claim thereon, shows an action in tort of wrongful
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restraint, ejection, libel, etc.
In this wise, I think action for tort of the character shown in this appeal ought to have been litigated at the High Court and certainly not at the National Industrial Court; for it is not, in my contrite view one that may be classified as tort in the place of work and related to the, and arising from the performance of work.
Even upon the reason aforesaid, I hold that the reliefs iv and vii were rightly not granted by the trial Court. This answers the Respondents issue 2 that the Appellant had not established its entitlement to the claims on the balance of probabilities and was therefore, rightly, not granted the reliefs iv and vii, claimed.
I must say, that in this appeal, the Respondents learned counsel, sought at the inception to erect technical justice whilst the Appellants counsel on his part also sought to foster sentiments. Both characteristics have no place in adjudication. See Osareren v. FRN (2018) 10 WLRN (pt 1627) page 221 pages 233 and 240 respectively.
The Appellant had, in any case, waived whatever right she had when she had accepted salaries and allowances including the
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benefits of the same office of Director Planning; it will be unjust and inequitable to resile, as equity follows the law.
She is, by her conduct, estopped from complaining in this regard. She had waived all niceties relating to her personal rights. See Osareren v. FRN (2018) 10 NWLR (pt 1627) 221. Appellant cannot be allowed in inequity to approbate and reprobate, for it will be unconscionable to so do. It is not a public right as in Menakaya v. Menakaya where a public right to judgment to be delivered in public rather than in chambers on the application of parties in divorce proceedings was held not waivable. Private rights are personal to the individual and may be waived.
I must state that while the Court appreciates the learned counsels industry, skill and in depth appreciation of the laws relevant, but there is no point veering too far on issues that are not the subject of appeal or in point, as that would amount to calling on the Court to waste useful and scarce judicial time.
An instance is where this Court is implored to consider the refusal to grant reliefs 1, 2 and 3 as settled on the principle of expression unius est exclusion
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alternius and on the authority of CGG (Nig.) Ltd v. Aminu (2015) 7 NWLR (pt 1459) 547at 594; if there is no appeal upon any issue or ground and it is not so claimed in address then why the bother in addressing on it?
On the whole, Exhibits T AND S show that the salaries, allowances due to the Appellant had not been stopped and the reliefs claimed in that respect were un proved.
The unproven and largely speculative evidence of the Appellant were properly evaluated and the learned trial judge correctly dismissed the Appellants case.
I, accordingly resolve all the Appellants issues against her and dismiss this appeal as lacking in merit.
For the avoidance of doubt, the judgment in suit No. NICN/AK/28/2013 delivered on 4th July, 2016 between Mrs. A. O. Adebayo v. (1). Vice Chancellor, Federal University of Technology, Akure (2) Federal University of Technology, Akure, per His Lordship A. N. Ubaka, J is affirmed.
Costs: parties are to bear their respective costs of the prosecution of this appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment just read by my learned
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brother, Mohammed A. Danjuma, JCA was made available to me in draft which I read and subscribed to the reasoning and conclusion reached therein with no addition to the determination of issues resolved by my Lord.
I too found no merit in this appeal, dismissed same and affirmed the decision of the lower Court as done in the lead judgment.
I abide by the consequential orders made thereof.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had a preview of the judgment of my learned brother, MOHAMMED A. DANJUMA, JCA just delivered. I agree with the reasonings and conclusions in the judgment.
My learned brother has so articulately and exhaustively resolved all the issues raised by the parties in this appeal that I have really nothing fresh and different to add to enrich the judgment. I therefore adopt the conclusions and reasonings of my learned brother in this judgment as mine. Consequently, I too dismiss this appeal for being unrneritorious. I affirm the decision of the trial lower Court delivered on the 4th of July, 2016.
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Appearances:
Dayo Akinlaja, SAN For Appellant(s)
Ighedosa Imadegbelo, Esq. For Respondent(s)
Appearances
Dayo Akinlaja, SAN For Appellant
AND
Ighedosa Imadegbelo, Esq. For Respondent