NIGERIAN NATIONAL PETROLEUM CORPORATION V. MAMMAN AMINU
(2013)LCN/6022(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of September, 2013
CA/K/139/2009
RATIO
“In construing the actual or real intent in a given document, contract or enactment, the principle is that the document, contract or enactment must be read as a whole, not by the sections, in isolation. See the case of Unilife Dev. Co. Ltd vs. Adeshigbin (2001) 4 NWLR (pt. 704) 609; (2001) LPELR 3382 (SC), where the Supreme Court, Per Achike JSC, held- “The best construction of a deed is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible, be given to every word and every clause . . . It is a fundamental role of construction of instruments, that is, several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning.” See the case of Ojokolobo & Ors vs. Adamu & Anor (1987) 7 SCNJ 98; (1987) 3 NWLR (pt.61) 339. In that case of Unilife Dev. Co. Ltd vs. Adeshigbin (Supra), the Supreme Court added, on the danger of reading terms and clauses in agreement in isolation- “Surely, a fragmentary interpretation of the various clauses of the lease agreement, without recourse to the entire Lease Agreement, would do violence to the content in which the controversial terms ‘premises’ and ‘land’ were employed and therefore the ascertainment of the parties intention in relation to these two terms was bound to be distorted und erroneous and consequently unacceptable.” Per MBABA, J.C.A.
“Going forward and assuming that the Respondent could raise the issue of estoppel, the specie of estoppel that will come into play is the doctrine of estoppel by representation, also known as estoppel by conduct. This doctrine stipulates that if a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time – Ige Vs Amakiri (1976) 11 SC 1, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt.1118) 204. The principle upon which estoppel by representation is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations – First Bank of Nigeria Plc Vs Sangonuga (2007) 3 NWLR (Pt.1021) 230. The doctrine of estoppel by representation or by conduct is founded on the principle of fraud and it has five essential elements: (a) that there was a false representation or concealment of material facts; (b) that the representation must have been known to be false by the party making it or the party must have been negligent in not knowing its falsity; (c) that it was believed to be true by the person to whom it was made; (d) that the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent; and (e) that the party asserting the estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds – Oyerogba Vs Olaopa (1998) 13 NWLR (Pt 583) 509, Bank of the North Ltd Vs Yau (2001) 10 NWLR (Pt.721) 408, Chukwuma Vs Ifeloye supra. Thus, in pleading estoppel by conduct, it is not enough to plead the actual conduct of the defendant which the claimant relies upon as constituting the representations made by the defendant to the claimant. The claimant must go on to plead the acts of detriment he did in reliance on the defendant’s representations. This is what pleading estoppel with particularity connotes – Ibe Vs Auta (1998) 2 NWLR (Pt.538) 497, Baffa Vs Odili (2001) 15 NWLR (Pt.737) 709.” Per ABIRU, J.C.A. (DISSENTING)
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) Appellant(s)
AND
MAMMAN AMINU Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering The Leading Judgment): On 5th May, 2007, Hon Justice A. M. Liman, of the Federal High Court, Kaduna, delivered judgement in suit No. FHC/KD/CS/39/2005, granting the reliefs sought by the Plaintiff (Respondent herein) and held that the Respondent’s services of Appellant for 9 years, 6 months and 1 day be deemed as 10 years for the purpose of defining his entitlements to the payment of pension. The lower Court, therefore, ordered that the Respondent be paid pension, calculated from 20th June, 2003 and for the rest of his life. This appeal is against that decision.
As per the claims at the lower court, the Respondent had been a staff of the Appellant, until 30th April, 1996, when he voluntarily retired, after putting 9 years, 6 months and 1 day in the service of the Appellant. Subsequently, upon attaining the ‘age of retirement’ (45 years), the Respondent claimed a right to pension, due to persons who retired by that age, on being employed for 10 years by the Appellant. Appellant had denied this claim, or the grounds that the actual period of Respondent’s service did not qualify him for pension.
In the declaratory reliefs sought by the Respondent, he claimed as follows in the originating summons-
“(a) A declaration that the plaintiff’s 9 years, 6 months and 1 day of service in the employment of the Defendant is equal to 10 years, for the purpose of calculation and payment of his pension, as provided by the NNPC Senior Staff Conditions of Service.
(b) A declaration that the plaintiff is entitled to payment of his pension by the Defendant.
(c) An Order directing the Defendant, with immediate effect, to commence the payment of the plaintiff’s cumulated pension from 20th day of June, 2003 (i.e. the date of attainment of the statutory pensionable age), till date und hence forth for life.”
(Page 5 of the Records of Appeal)
Appellant filed the Notice of Appeal on 30/3/2009, with the leave of this court, granted on 27/3/2009. It raised a lone ground of appeal, as follows-
“The Honourable Judge erred in law when he held that- ‘I have already quoted paragraph 15.6 thereof and it is very clear that on its very wording the 10th year of service, need not be an absolute year for the purpose of calculation of pension provided it is more than 6 months’ and that the Respondent (sic) service of 9 years, 6 months and 1 day was sufficient to satisfy the clear 10 years qualification for pension under NNPC Conditions of Service.
PARTICULARS-
i) NNPC Conditions of Service clearly required service of 10 years to earn pension and the ordinary and natural meaning of 10 years is full calendar years.
ii) The Respondent had not worked for 10 years and the entire basis of the learned judge’s conclusion that the qualification is satisfied is his interpretation of a note to paragraph 15.6 of the Conditions of Service.
iii) Paragraph 15.6 is a mere schedule dealing with calculation of pensions for eligible persons. The schedule itself makes clear that entitlements to pension begins upon 10 years of qualifying service. This is the internal con by which the note is to be constructed. That is, upon eligibility having arisen at 10 years, pension will be calculated according to the note.
iv) The above internal con is made certain by the preceding provision in paragraph 15.4.3 which deals expressly with ‘VESTING OF PENSION’ and which emphasizes the 10 years qualification as paramount.
v) The relevant note is an aid to the calculation of benefits for eligible persons and not to qualification for person and the learned judge ought, respectfully to have read the orphaned note in its immediate con and in con of the entire document as he was obliged to do by law.
vi) Had the judge been properly addressed, he ought to have come to a different conclusion.” (Pages 93-94 of the Records of Appeal).
Appellant filed its brief of argument on 23/5/2009 and later substituted it with another, filed on 14/3/2012, which was deemed duly filed on 17/1/13. On being served with the Respondent’s Brief, filed on 17/1/13, Appellant filed a reply Brief on 2/4/13, which was deemed duly filed on 25/6/13. Appellant distilled a lone issue for determination as follows-
“Whether upon a proper construction of the NNPC Senior Staff Conditions of Service (‘the conditions’) the Respondent’s service of 9 years, 6 months and 1 day can be deemed as 10 full years for the purpose of qualifying him to receive pension from the Appellant.”
Arguing the Appeal, Appellant’s Counsel, CA. Candide – Johnson SAN. (who settled the brief), referred us to the paragraphs 15.3 and 15.4.3 of the Conditions of Service of Appellant on retirement/pension/gratuity age and vesting of pension, which he reproduced as follows-
Para 15.3-
“…Gratuity and pension are applicable after attainment of five (5) years und ten (10) years of service, respectively. Any employee who has served the corporation for ten (10) years or more may retire from the service of the corporation in which case he shall have the payment of his gratuity made upon retirement, but his pension becomes payable upon his attainment of 45 years of age…”
Paragraph 15.4.3-
“Subject to the foregoing and in accordance with the public policy, earned pension and gratuity are regarded as un inalienable right, which under normal circumstances shall not be withheld or reduced. However, where an employee is dismissed from service, such dismissal shall result in the forefeiture of his retiring benefits. Such forefeiture must be approved by the Board of Directors of the corporation in the case of employees who are eligible for terminal benefits after 10 years of service.”
Learned Senior Counsel submitted that since the Respondent voluntarily retired after 9 years, 6 months and 1 day in service, according to natural and ordinary meaning of the above provisions, he was not qualified for pension; that the learned trial judge was bound to follow this natural and ordinary meaning in seeking to determine the eligibility of the Respondent for pension – considering the period of his service. He relied on the case of Olatunde vs. OAU (1998) 5 NWLR (pt. 549) 178 at 191-
“Where however the language, terms, intent or words of any part or section of a written contract, document or enactment are clear and unambiguous; they must be given their ordinary and actual meaning as such terms or words used best declare the intention of the parties, unless of course this would lead to absurdity or be in conflict with some other provisions thereof,”
See also Buraimoh vs. Esa (1990) 2 NWLR (pt.133) 406 at 417; UBN vs. Sax Nigeria Ltd (1994) 8 NWLR (Pt.361) 150.
He submitted that the judge erred when he failed to consider the paragraphs 15.3 and 15.4.3 referred above, and rather hinged his judgment on a foot note to paragraph 15.6 of the Conditions of Service that service in a year aggregates service of more than 6 months, and so Respondents service for 9 years, 6 months and 1 day aggregated as 10 years service.
Counsel submitted that even by his lordship’s own judgment, the entire paragraph 15.6 (which must be deemed to include the foot note) was intended only for the purpose of calculating pension and qualifying for pension. He referred us to the foot note, which says- “Any part of a year that is more than 6 months, for the purpose of this schedule, be regarded as a complete year”
Counsel said that paragraph 15.6 comprises a table, divided into 1 row and 3 columns, with each column bearing the respective headings of “Years of Qualifying Service, Gratuity as percentage of Final Total Emolument, and Pension as percentage of final Total Emolument”; that under the pension column all the years of qualifying service, less than 10 years, have no percentage provided. He submitted that the conditions of service made a clear distinction between qualifying age for pension in paragraph 15.3 and 15.4.3, and the formula for calculating pension in the paragraph 15.6, as the latter provision can only be interpreted in the con of staff that had already qualified for pension. He added that even if there was any ambiguity in the wording of paragraph 15.6, its heading should be regarded in resolving the said ambiguity, as it is headed-
“Formula for Pension and Gratuity Calculation Based on Percentage of Final Salary;”; that this reinforces the interpretation of the Appellant, which is that, it deals with calculation of pensions, not qualification for pension. He relied on the case of Habib vs. LEDB (1958) 1 NSLL 102 at 105, Per Ademola FCJ-
“Now it is the cardinal rule of interpretation of statutes that the headings cannot control the plain words of the statute – headings are only to be regarded where there is an ambiguity in the words in the ordinance.”
He also relied on UTC (Nig.) Ltd vs. Pamotel (1989) 2 NWLR (pt.103) 244 at 285-
“Generally, the meaning und scope of the content of a statutory provision is not to be determined by the heading or even marginal note unless the provision is ambiguous.”
Counsel further submitted that the conditions of service is a single document and the law is clear that it cannot be interpreted by isolating one part, but by interpreting in such a way as to preserve the intension of its author by harmonising its provisions. He relied on Unilife Dev. Co. Ltd vs. Adeshigbin (2001) 4 NWLR (pt.704) 607 at 640; FBN Plc vs. Excel Plast. Ind. Ltd (2003) 13 NWLR (pt. 837) 412 at 488; Mbani vs. Bosi (2006) 11 NWLR (pt. 991) 400 to 417; Akaighe vs. Idama (1964) ALL NLR 317 at 322.
He urged us to resolve the issue in favour of the Appellant and allow the appeal.
The Respondent’s Issue for determination was couched differently, as follows-
“Whether the Respondent’s 9 years, 6 months and 1 day of meritorious service with the Appellant is tantamount to 10 years for the purpose of calculation and payment of his pension, in view of the provisions of section 15.6 of the MPC Senior Staff Condition of Service and the Appellants’ letter, dated the 30th day of April, 2004.”
Arguing, the same, learned Counsel for the Respondent, Tajudeen Oladoja Esq, who settled the Brief, relied heavily on the paragraph 15.6 of The Conditions of Service which opened with a Note!
“Note- Any part of a year that is more than 6 (six) months shall, for the purpose of this schedule be regarded as a complete year.”
Counsel submitted that the above Note and the Appellant’s letter of 30/4/2004 constituted the main kernel of the Respondent’s case at the trial court; that it is trite and settled law, that in interpretation of statutes, the words used must be given their ordinary and plain meaning. He relied on Ifezue vs. Mbadugha (1984) 1 SCNLR 247; Ogbuniya vs Okudo (1979) 6-9 SC 32. He added that a statute should always be looked at as a whole Awolowo vs. Shagan (1983) 1 SCNJ 296; UNIPETROL (NIG) Plc vs. ES. BIR (2006) NWLR (pt. 983) 629 at 641.
Counsel also added that it is established principle of interpretation of law that schedules to statutes are as such part of an Act as any other part and may be used in construing provisions in the body of the Act, that similarly, a schedule in a Decree is part of the Decree and can be used to interprete provisions in the law. See Afolayan vs. Bamidele (1990) 3 NWLR (pt. 595) 463.
Counsel submitted that the said footnote to the schedule in paragraph 15.6 of the NNPC Senior Staff Conditions of service is part and parcel of that paragraph; that paragraph 15.3 of the conditions of service must be interpreted in the light of the provisions of the schedule in paragraph 15.6, which says- (15.3)!
“Any employer who has served the corporation for ten (10) years or more may retire from service of the corporation in which case he shall have the payment of his gratuity made upon retirement but his pension becomes payable upon his attainment of 45 years of age.”
He submitted that a close scrutiny of the said schedule to paragraph 15.6 will reveal that staffs entitled to gratuity are those that have attained 45 (sic) years of service but not less; that the draftman of the condition of service intended not to give gratuity to those who spent less than 5 years in service, and so counting started at the 5th year; that employees entitled to pension are those who attained 10 years or more, or 9 years and 6 months and above, going by the Note in paragraph 15.6, as in the case of the Respondent.
Counsel further submitted that, if draftman had intended to exclude one who spent 9 years, 6 months and above from benefiting from the pension, he would have specified same: expressly under the footnote; that in law express mention of a thing indicates implied exclusion of the other. He added that beside the clear wordings of the footnote to paragraph 15.6 quoted above, the Appellant had in its letter, dated 30/4/2004, approved that the Respondent be placed on pension with effect from 26/6/2003 and cannot be heard to contest otherwise, any longer. (See page 13 of the Records).
He urged us to resolve the issue against the Appellant and dismiss the appeal.
The Appellant’s Reply Brief alleged that “the Respondent’s Brief was diversionary, because apart from failing to address fundamental issues and settled principles of law raised in the Appellant’s Brief, it deliberately misconstrued clear and unambiguous provision of the NNPC Senior Staff Condition of Service.” With such a background, the arguments of the Appellant in the Reply brief were not on fresh issues of law, arising from the Respondent’s brief, but effort to substantiate the alleged diversion or misconstruction of the Appellant’s address by Respondent’s counsel; it was an improvement on the Appellant’s address (arguement).
A reply brief is not meant for such purpose, but to tackle fresh issue(s) of law, raised in the Respondent’s brief outside the scope of Appellant’s brief, for which the Appellant has a duty to explain or debunk, to save the court from being misled. It was not meant to further the argument of the Appellant and improve his position. See Order 18 Rule 5 of the Court of Appeal Rules 2011; Nigeria Yeast and Alcohol Manufacturing Co. Plc vs. All Motors (Nig.) Plc (2011) ALL FWLR (pt. 600) 1226; Goodwill & Trust Inv. Ltd vs. Witt & Bush Ltd (2011) ALL FWLR (pt. 576) 517.
RESOLUTION OF ISSUE-
The sole issue for determination by the two sides is the same, though couched differently by each side. It is on whether, as per the conditions of service of the Appellant, the Trial Court was right in deeming the 9 years, 6 months and 1 day which the Respondent put in the service of the Appellant, as 10 years, for the purpose of qualifying him for and calculating his pension.
The learned trial judge, in his judgment, had said-
“In my view, the only available and binding document on computation of pension is annexure ‘F’. I have already quoted paragraph 15.6 thereof and it is very clear that on its very wordings, the 10th year of service, need not be an absolute year for the purpose of calculating for pension, provided that it is more than 6 months. And it is exactly the situation in this case. It is established that the plaintiff had worked in the service of the defendant for the period of 9 years, 6 months and 1 day. He must therefore benefit from the calculation and be entitled to pension, upon attainment of 45 years; the age he has since attained.”
The Exhibit ‘F’ referred above, is the “Nigerian National Petroleum Corporation (NNPC) Conditions of Service Employee Handbook (Senior Staff)”. I had earlier reproduced the relevant sections 15.3; 15.4.3 and 15.6, which the parties relied upon, in this judgment. Whereas, paragraph 15.3 relates to the age of qualification for gratuity (5 years) and pension (10 years) in the service of the Appellant and adds that a person shall be due for pension on attainment of 45 years of age, paragraph 15.6, provides the “formula for pension and gratuity calculations based on percentage of final salary”. It is a schedule which shows, as follows, on page 55 of the Record of Appeal-
“Year of service
5
6
7
8
9
10
11
12
13
14
15
16
17
.
.
.
20
.
.
.
35
Gratuity as percentage of final total emolument
100
108
116
124
132
100
108
116
124
132
140
148
156
.
.
.
180
.
.
.
300
Pension as percentage of final total emolument
– – – – –
– – – – –
– – – – –
– – – – –
– – – – –
30
32
34
36
38
40
42
44
.
.
.
50
.
.
.
80
Note- Any part of a year that is more than 6 (six) months shall for the purpose of this schedule be regarded as a complete year.”
Appellant had strenuously, argued that the footnote on paragraph 15.6 can only be interpreted in the con of a staff who had already qualified for pension, as per paragraph 15.3, and that it deals with calculation of pension and not qualification for pension. The Respondent replied that the foot note to the schedule in paragraph 15.6 is part and parcel of that paragraph; that “any part of a year that is more than 6 (six) months shall, for the purpose of this schedule be regarded as a complete year.” Thus, the 9 years, 6 months and 1 day put in by the Respondent, therefore, amounted to 10 years, qualifying him for pension.
Both the Appellant and Respondent relied, strongly, on the cases on the principles of interpretation of statute or written document; that words used must be given their ordinary and plain meaning; that-
“Where however the language, terms, intent or words of any part or section of a written contract, document or enactment are clear and unambiguous, they must be given their ordinary and actual meaning, as such terms or word used best declare the intention of the parties, unless of course this would lead to absurdity or be in conflict with some other provisions thereof.” See the case of Olutunde vs. O.A.U. (1988) 5 NWLR (pt. 549) 178 at 191 (per Iguh JSC).
See also Buraimoh vs. Esa (1990) 2 NWLR (pt. 133) 406; and UBN vs. Sax Nig. Ltd (1994) 8 NWLR (pt. 361) 150, which says-
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning.”
I think the wordings of Exhibit ‘F’ (Conditions of Service), which remains binding on the Appellant and the Respondent, are quite clear, and free from any cannon of interpretation, when paragraph 15.3 of the conditions of service is read, jointly, with the footnote to the schedule in paragraph 15.6 thereof.
Of course, it is trite that the footnote to the schedule in paragraph 15.6 of the Conditions of Service is part and parcel of the said paragraph and functions as an explanatory note, or proviso, to give meaning and intended effect to the application of paragraph 15.3, relating to qualification for gratuity and/or pension and the calculation of the monetary value of same in relation to the years of service of an employee.
I do not see how the paragraph 15.3 can be interpreted in isolation of paragraph 15.6 and the footnote thereof, both in terms of the calculation of the years of service and the monetary value of gratuity and pension of employee in relation to the years of service.
The explanatory note in paragraph 15.6, I believe, was meant to assist in resolving the problems associated with calculating what would be due to an employee within a fraction of a year, on attaining the age of gratuity or pension, and so it stipulated, by mutual agreement, that extra 6 months and more shall be regarded as a complete year, for the purpose of calculation of entitlement for years of gratuity or pension of an individual employee! That also implied that any fraction of a year (which is not more than 6 months) would not count as a whole year. The inference, therefore, is that one who had put in 10 years and more than 6 months, by paragraph 15.6 would be deemed to have put in 11 years of service and his gratuity and pension would be calculated to be 108% of his emolument for gratuity and 32% of his emolument for pension, respectively.
In the same way, for one who has put in 9 years, 6 months and 1 day (which fraction by paragraph 15.6, is more than 6 months), his gratuity and pension, by the grace of the explanatory note in paragraph 15.6 of the Conditions of Service, has to be calculated on the basis of 10 years which is a pensionable year, with 100% gratuity and 30% pension, respectively! To hold, otherwise, in the case of 9 years and more than 6 months (as opposed to 10 years and more than 6 months, or 11 years, 12 years (and more than 6 months), would be absurd and discriminatory and would, certainly, negate the intention of the provision relating to calculations of gratuity and pension in the Exhibit ‘F’.
In construing the actual or real intent in a given document, contract or enactment, the principle is that the document, contract or enactment must be read as a whole, not by the sections, in isolation. See the case of Unilife Dev. Co. Ltd vs. Adeshigbin (2001) 4 NWLR (pt. 704) 609; (2001) LPELR 3382 (SC), where the Supreme Court, Per Achike JSC, held-
“The best construction of a deed is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible, be given to every word and every clause . . . It is a fundamental role of construction of instruments, that is, several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning.” See the case of Ojokolobo & Ors vs. Adamu & Anor (1987) 7 SCNJ 98; (1987) 3 NWLR (pt.61) 339.
In that case of Unilife Dev. Co. Ltd vs. Adeshigbin (Supra), the Supreme Court added, on the danger of reading terms and clauses in agreement in isolation-
“Surely, a fragmentary interpretation of the various clauses of the lease agreement, without recourse to the entire Lease Agreement, would do violence to the content in which the controversial terms ‘premises’ and ‘land’ were employed and therefore the ascertainment of the parties intention in relation to these two terms was bound to be distorted und erroneous and consequently unacceptable.”
I am, therefore, totally in agreement with the learned trial judge on the interpretation of the true intention of the parties in Exhibit F to give the benefit of 6 months and above service to and employee as equivalent to a complete year, for the purpose of calculating one’s gratuity or pension thus, construing the Respondent’s 9 years, 6 months and 1 day as 10 years of service for that purpose.
In view of the provision of the Appellant as per the letter, there was no conflict on the interpretation of their agreement in Exhibit. I think the Court can only be called upon to interpret the content of a document, where there is conflict in the understanding of the agreement, by the parties on it. I do not see any disagreement by the parties in this case as to the interpretation of paragraphs 15.3and 15.6 of Exhibit.
The Appellant, in fact, had admitted this in its letter of 30/4/2004 to the Respondent, where it stated, as follows (Annexure D2)-
“Mr. Aminu Mamman (73194) voluntarily retired from the services of the corporation on 3rd day of April, 1996. Accordingly, he was paid his gratuity of Four Hundred and Forty Two Thousand, Four Hundred and Twelve Naira, Forty Kobo (N442,412.40) only at Corporate Headquarters, while payment of his pension was deferred because he had not yet attained the mandatory retirement age of forty five (45) years as of the time of his retirement. The retiree has now written, asking that he be placed on pension, having attained the required age on 26th of June, 2003.
In view of the foregoing, kindly place him on pension, with effect from 26th June, 2003.
Attached herewith are copies of-
(i) Acceptance of voluntary retirement from the services of the corporation
(ii) Final terminal Benefits/claim form
(iii) Statutory declaration of age.
This is for your further necessary action, please.
Signed
A. M. Abuhukar
For MD – KRPC”
(See page 13 of the Records of Appeal)
The tenor of that letter shows that the qualification of the Respondent for pension, as per the conditions of service of Appellant, was never in doubt; that the same had been agreed upon at the time the Respondent volunteered to retire on 30/4/1996, and he was paid his gratuity and acknowledged as being due for pension, which he was only to wait to attain the mandatory age of 45 years to be placed on pension list! Surprisingly, whoever was in a position to treat the Respondent’s application, as suggested by the Appellant’s internal memo referred above, decided to be funny and tried to frustrate the Respondent, giving rise to this unnecessary litigation.
That person must have been propelled by mischief, to seek to go against the express admission of the Appellant in the letter of 30/4/2004 (Exhibit D2).
I have to also observe that the particulars which the Appellant formulated to support the ground of appeal were clearly in breach of the Rules of this Court (Order 6 Rule 2 (3) of this Court’s Rules) which outlaws a ground of appeal that is argumentative and narrative. See also the case of Olufeagbu vs. Abdul Raheem (2009) 18 NWLR (pt.1173) 384 where the Supreme Court said,
“A ground of appeal can only be competent if the particulars and the nature of the alleged misdirection or error are clearly stated. The ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against the ratio decidendi in the decision, as opposed to obiter dictum. The particulars to the ground must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective und liable to be struck out.”
Egbe vs. Alhaji (1990) 1 NWLR (pt.128) 546; A. G. Oyo State vs. Fairlake Hotel (1988) 5 NWLR (pt. 92) 1.
I therefore resolve this issue against the Appellant, holding that the appeal is completely devoid of merit and therefore fails. It is hereby dismissed. Appellant shall pay Fifty Thousand Naira (N50,000.00) costs to the Respondent.
DALHATU ADAMU, J.C.A., CFR: I have had the advantage of reading the draft of the lead judgment of my learned brother I. G. Mbaba JCA in this appeal. I agree with his reasoning and conclusion he arrived at in the said lead judgment that the appeal is devoid of any merit and consequently fails. I hereby also dismiss it and abide by the order on costs as made in the said lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (DISSENTING): I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mbaba, JCA. I must say, with all deference, that I am unable to agree with the reasoning and conclusions reached in the lead judgment. I am compelled to write dissenting views.
This is an appeal against the judgment of the Federal High Court sitting in Kaduna State in Suit No FHC/KD/CS/39/2005 delivered by Honorable Justice A. M. Liman on the 5th of May, 2007. The Respondent, as plaintiff, commenced Suit No FHC/KD/CS/39/2005 against the Appellant, as defendant, by an Originating Summons for the determination of the following questions:
i. Whether the Plaintiff’s 9 years 6 months and 1 day of meritorious service with the Defendant is tantamount to 10 years for the purpose of calculation and payment of his pension, in view of the provisions of section 15.6 of the NNPC Senior Staff Conditions of Service.
ii. Whether the NNPC Corporate Policy (if any) can override the clear and unambiguous provisions of the NNPC Senior Staff Conditions of Service.
iii. Whether the Plaintiff is entitled to the payment of his pension by the Defendant.
Consequent on the determination of the said questions, the Plaintiff prayed for the following reliefs:
i. A declaration that the Plaintiff’s 9 years 6 months and 1 day of service in the employment of the Defendant is equal to 10 years for the purpose of calculation and payment of his pension, in view of the provisions of section 15.6 of the NNPC Senior Staff Conditions of Service.
ii. A declaration that the Plaintiff is entitled to the payment of his pension by the Defendant.
iii. An order directing the Defendant with immediate effect to commence the payment of the Plaintiff’s cumulated pension from the 206 day of June 2003 (i.e date of attainment of statutory pensionable age), till date and henceforth for life.
In a considered judgment delivered on the 5th of May, 2007, the Lower Court answered the first and third questions on the Originating Summons of the Respondent in the affirmative and the second question in the negative. The Lower Court thereafter proceeded to grant all the reliefs sought by the Respondent. The Appellant was dissatisfied with the judgment of the lower Court and it caused a notice of appeal to be filed against it. The notice of appeal was dated the 18th of March, 2009 and the notice of appeal contained only one ground of appeal. The Appellant was granted an extension of time within which to file the notice of appeal by this Court on the 18th of March, 2009.
The facts of this matter are very straight forward. The Respondent was a staff of the Appellant at its Kaduna Refinery until he voluntarily retired his employment on the 30th of April, 1996 after 9 years 6 months and 1 day of service. In the letter of acceptance of the voluntary retirement dated the 26th of February, 1996, the Appellant stated, in part, thus:
“…You are as provided for in the NNPC Conditions of Service entitled to gratuity and pensions benefits less your indebtedness to the Company.
Accordingly, the matter of your terminal benefits of gratuity and pension is being referred to NNPC Corporate Headquarters for further action.
However, as you are yet to reach the mandatory age of 45 years as provided for by public policy, you shall only be paid your gratuity while pension Payment will only commence when your age is 45…”
By a letter dated the 13th of February, 2004, the Respondent applied for pension payment. The letter read thus:
“I voluntarily retired from the services of NNPC on 30th of April, 1996 after putting in 10 years of service…
I was paid my gratuity at the pension office but pension payment has not commenced even after clocking 45 years in life on 26th of June, 2003 …”
Based on the letter of the Respondent, the office of the Managing Director of the Kaduna Refinery of the Appellant dispatched a Memorandum dated the 30th of April, 2004 to the Head of Pensions of the Appellant saying that the Respondent should be paid his pension as he spent 10 years in the service of the Appellant. The Head of pensions did not pay the Appellant any pension and whereupon the Appellant commenced Suit No FHC/KD/CS/39/2005 culminating in the present appeal. The defence of the Appellant before the lower Court was that by its rules and policy guidelines only employees who had served 10 complete years qualified for pension and that the Respondent serve for 9 years 6 months and 1 day and did not thus quality for pension. It was its case that the letters written by the Appellant that the Respondent was entitled to pension were written in error in the belief that the Respondent had put in 10 years in service.
In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 7th of March, 2012 and it was filed on the 14th of March, 2012. The brief of the Appellant was deemed properly filed on the 17th of January, 2013 and it consisted of eighteen pages. The brief of arguments of the Respondent was dated and filed on the 17th of January, 2013 and it consisted of six pages. The Appellant filed a reply brief of nine pages dated the 29th of February, 2013. The reply brief was deemed properly filed on the 25th of June, 2013. At the hearing of the appeal on the 25th of June, 2013, Counsel to the parties relied on and adopted their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellant formulated one issue for determination in the appeal and this was:
Whether upon a proper construction of the NNPC Senior Staff Conditions of Service (“the Conditions”) the Respondent’s service of 9 years 6 months and 1 day can be deemed as 10 full years for the purpose of qualifying him to receive pensions from the Appellant.
In his own brief of arguments, Counsel to the Respondent conceded that there was only one issue for determination. Counsel re-formulated the issue thus:
Whether the Respondent’s 9 years 6 months and 1 day of meritorious service with the Appellant is tantamount to ten years for the purpose of calculation and payment of his pension, in view of the provisions of section 15.6 of the NNPC Senior Staff Conditions of Service and the Appellant’s letter dated the 30th day of April, 2004.
It is apparent that the issue for determination formulated by the Appellant and reformulated by the Respondent is the same. Counsel to the Appellant submitted that the appeal devolves on the interpretation of NNPC Senior Staff Conditions of Service, particularly paragraphs 15.3 and 15.4.3 which, he said, clearly provide for the basis upon which an employee qualifies for pension. Counsel reproduced the provisions of the two paragraphs and submitted that according to the natural and ordinary meaning of the provisions only an employee who had put in 10 years of service is entitled to be paid pension and that since the Respondent voluntarily retired after 9 years 6 months and 1 day of service, he was not qualified for pension. Counsel submitted that the lower Court was bound to follow the natural and ordinary meaning in interpreting the provisions of the NNPC Senior Staff Conditions of Service and he referred to the cases of Olatunde Vs O.A.U. (1998) 5 NWLR (Pt.549) 178, Union Bank of Nigeria Vs Sax Nigeria Ltd (1994) 8 NWLR (Pt.361) 150.
Counsel submitted that the lower Court was in error in failing to consider the provisions of paragraphs 15.3 and 15.4.3 of the NNPC Senior Staff Conditions of Service in reaching his decision and in hinging his entire deliberations on the provisions of paragraph 15.6 of the NNPC Senior Staff Conditions of Service. Counsel reproduced the provisions of paragraph 15.6 and stated that the provisions deal with the formula for calculating pension and do not provide for qualification for pension which is covered by paragraph 15.3 and 15.4.3 and that even paragraph 15.6 did not provide the percentage payable as pension to an employee who has served less than 10 years. Counsel submitted that the provisions of paragraph 15.6 only come into play after an employee has qualified for pension as provided for in paragraphs 15.3 and 15.4.3. Counsel stated that even if the provisions of the three paragraphs created an ambiguity, the heading of paragraph 15.6 which show that it is for calculation of pensions and gratuity ought to clear the ambiguity and he referred to the cases of Habib vs LEDB (1958) 1 NSCC 102, UTC (Nig) Ltd vs Pamotei (1989) 2 NWLR (Pt.103) 244. Counsel submitted that the NNPC Senior Staff Conditions of Service should be interpreted as a single document and not in isolated parts and he referred to the cases of Unilife Development Co. Ltd Vs Adeshingbin (2001) 4 NWLR (Pt.704) 609 and Mbani Vs Bosi (2006) 11 NWLR (pt.991) 400, amongst others. Counsel urged this Court to resolve the only issue for determination in favour of the Appellant.
In response, Counsel to the Respondent stated that the kernel of the case of the Respondent before the Lower Court was the provision of paragraph 15.6 of the NNPC Senior Staff Conditions of Service, particularly the foot note thereto. Counsel submitted that it was settled law that in the interpretation of statutes, words used must be given their ordinary and plain meaning and he referred to the cases of Ifezue Vs Mbadugha (1984) 1 SCNLR 247 and Ogbuniya Vs Okudo (1979) 6-9 SC 32. Counsel further submitted that a statute should always be looked at as a whole and he referred to Awolowo Vs Shagari (1983) 1 SCNLR 296 and Unipetrol Nig. Plc vs ESBIR (2006) 8 NWLR (Pt.983) 624. Counsel also stated that it was an established principle of interpretation that schedules to statutes are part of an Act and may be used in construing provisions in the Act and he referred to Afolayan Vs Bamidele (1990) 3 NWLR (Pt 595) 463.
Counsel reproduced the foot note to paragraph 15.6 of the NNPC Senior Staff Conditions of Service and stated that it was part and parcel of the paragraph and that the provisions of paragraph 15.3 must be interpreted in the light of the provisions of the schedule in paragraph 15.6. Counsel submitted that doing so will show that those entitled to pension are persons who have served for 9 years and 6 months or more as 9 years and 6 month will be equated to 10 years and that as such the Respondent qualified for pension having served for 9 years, 6 months and 1 day. Additionally, Counsel stated that since the Appellant had by its Memorandum of 30th of April, 2004 approved the Respondent for pension payment, it cannot be heard to contest otherwise any longer. Counsel prayed that the issue for determination be resolved in favour of the Respondent.
It was not in contest between the parties that the terms governing the employment of the Respondent with the Appellant were embodied in the NNPC Senior Staff Conditions of Service. These terms constituted, in the main, the contract that governed the relationship between the parties and in construing the relationship between the Appellant and Respondent, this Court is enjoined to confine itself to the plain words and meaning derived from this document – Central Bank of Nigeria Vs Archibong (2001) 10 NWLR (pt 721) 492, Ibama vs Shell Petroleum Development Co. (Nig) Ltd (2005) 17 NWLR (Pt 954) 364, Momoh vs Central Bank of Nigeria (2007) 14 NWLR (Pt.1055) 504. It is settled law that parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt.1328) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR (Pt 1336) 555. A court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful. The terms of a contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. It is not the business of the court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into the contract. The duty of the court, where a dispute arises between parties to a contract, is to construe the surrounding circumstances, including the written or oral statement, so as to effectuate the intention of the parties – Omega Bank (Nig) Plc vs O.B.C. Ltd (2005) 8 NWLR (Pt 928) 547, BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt 1332) 209, Daspan Vs Mangu Local Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd vs Lee (2013) 6 NWLR (Pt.1349) 1. The cardinal principle of construction of an agreement between parties is for the court to give an interpretation which is consistent with the object of the entire document – Odutola Holdings Ltd Vs Ladejobi (2006) 12 NWLR (pt 994) 321, Bakare Vs Nigeria Railway Corporation (2007) 17 NWLR (Pt.1064) 606, Lagos State Government Vs Toluwase supra.
It was also not in dispute between the parties that the provisions of the terms of the contract, the NNPC Senior Staff Conditions of Service, which are germane to the resolution of the singular issue for determination in this appeal, are contained in paragraphs 15.3, 15.4.3 and 15.6 thereof. Paragraph 15.3 is headed Retirement/Pension/Gratuity Age and it reads thus:
“Compulsory retirement for every employee shall occur as soon as the employee attains the age of sixty (60) years or 35 years length of service in the Public Sector, whichever is earlier. All employees shall have the option to retire voluntarily after attaining the age of forty-five (45) years. Gratuity and pension are applicable after the attainment of five (5) and ten (10) years of service respectively. Any employee who has served the Corporation for ten (10) years or more may retire from the service of the Corporation in which case he shall have the payment of gratuity made upon retirement but his pension becomes payable upon his attainment of 45 years of age. Any officer retired in the public interest will be entitled to pension immediately upon retirement whether or not he is 45 years old.”
Paragraph 15.4.3 is headed Vesting of Pension and it reads:
“Subject to the foregoing and in accordance with public policy, earned pension and gratuity are regarded as an inalienable right which under normal circumstances shall not be withheld or reduced. However, where an employee is dismissed from service, such dismissal shall result in the forfeiture of his retiring benefits. Such forfeiture must be approved by the Board of Directors of the Corporation in the case of employees who are eligible for terminal benefits after 10 years of service.”
Paragraph 15.6 is headed Formula For Pension and Gratuity Calculations Based On Percentage of Final Salary. The paragraph contains a schedule with three columns designated thus: (i) First Column – Years of Qualifying Service and it contained, in a descending order, figures from 5 to 35 years and showed that the qualifying age for payment of gratuity as 5 years and for payment of pension as 10 years; (ii) Second Column – Gratuity as Percentage of Final Total Emolument and it contained figures showing that a person who had put in five years of service was entitled to 100% of final emolument as gratuity and it continued to show the percentages due to the subsequent years of service in a descending order up to 35 years which is entitled to 300%; and (iii) Third Column – Pension as Percentage of Final Total Emolument and it contained figures showing that a person who had put in ten years of service was entitled to 30% of final emolument as pension and it continued to show the percentages due to the subsequent years of service in a descending order up to 35 years which is entitled to 80%. It concluded with a Note that read thus:
“Any part of a year that is more than 6 (six) months shall for the purpose of this schedule be regarded as a complete year.”
These were the same provisions that the parties invited the lower Court to interpret in resolving the questions raised for determination by the Respondent in his Originating Summons. However, the lower Court, in its wisdom, only interpreted the provisions of paragraph 15.6 and completely overlooked the provisions of paragraphs 15.3 and 15.4.3.The lower Court stated in its judgment thus:
“In my view, the only available and binding document on computation of pension is annexure ‘F’. I have already quoted paragraph 15.6 thereof and it is very clear that on its very wordings, the 10th year of service, need not be an absolute year for the purpose of calculating for pension, provided that it is more than 5 months. And it is exactly the situation in this case. It is established that the plaintiff had worked in the service of the defendant for the period of 9 years, 5 months and 1 day. He must therefore benefit from the calculation and be entitled to pension, upon attainment of 45 years; the age he has since attained.”
The document referred to as annexure F by the lower Court is the NNPC Senior Staff Conditions of Service and it was based on these deliberations that the Lower Court granted all the reliefs of the Respondent. It must be stated that the lower Court breached a fundamental principle of interpretation of documents when it jettisoned the provisions of paragraphs 15.3 and 15.4.3 of the NNPC Senior Staff Conditions of Service and interpreted only the provisions of paragraph 15.6. The principle postulates that in interpreting the contents of a document, all the provisions dealing with a particular subject matter must be considered together, as a whole, and not in isolation of each other, and this must be done within the con of the contents of the entire document- see the cases of Akaighe Vs Idama (1964) All NLR 317, Unilife Development Co. Ltd Vs Adeshigbin (2001) 4 NWLR (Pt 704) 609, Mbani vs Bosi (2006) 11 NWLR (Pt 991) 400 cited by counsel to the Appellant in his brief of arguments.
It is also a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937) 631, Egwunewu vs Egeagwu (2007) 6 NWLR (Pt 1031) 431. Both the Counsel to the Appellant and the Counsel to the Respondent were ad idem on this principle and they both canvassed it in their respective briefs of arguments. Applying this principle and taking a holistic view of the provisions of paragraphs 15.3, 15.4.3 and 15.6 of the NNPC Senior Staff Conditions of Service it is clearly obvious that each paragraphs deals with different aspects of the issue of pension. Giving the words of these paragraphs their ordinary, simple and grammatical meanings, it is clear that paragraph 15.3 dealt with retirement age and qualification for gratuity and pension and it covered four areas. It states that:
(i) an employee who has attained the age of sixty (60) years or who has put in thirty-five (35) years in the service of the Appellant, whichever occurs first, must be retired;
(ii) all employees of the Appellant shall have the option of retiring voluntarily after attaining the age of forty-five years of age.
(iii) employees of the Appellant shall be eligible for gratuity only after having put in five years in service and shall be eligible for pension only after ten years of service; and
(iv) in the case of an employee who desires to retire voluntarily before attaining the age of forty five, if he had put in ten years or more in service, he shall be entitled to the payment of his gratuity immediately upon retirement while payment of his pension shall commence upon his attaining forty-five years, except in the case of an employee who retired in the public interest whose payment of pension shall commence immediately upon retirement whether or not he has attained the age of forty-five years.
Paragraph 15.4.3 dealt with forfeiture of retirement benefits and it states that an employee of the Appellant who has qualified for gratuity and/or pension shall forfeit his right to the payments if he is dismissed from service but that such forfeiture must be approved by the Board of Directors in the case of an employee who has put in at least 10 years of service. Paragraph 15.6 laid out the formula to be adopted in calculating the gratuity or pension of employees who have qualified for such payments. It is obvious that these provisions do not overlap, and are distinct and separate, but are complimentary of each other. They cover different aspects of the gratuity and pension regime of the Appellant for its employees. The wordings of the foot note to paragraph 15.6 are very specific and they make the contents of footnote strictly applicable only to the formula for calculating pension and gratuity; thus where an employee was in the service of the Appellant for 10 years 6 months, he will be entitled to the same percentage of emolument as pension like an employee who served for 11 years and so on. The foot note to paragraph 15.6 is not applicable to any other paragraph of the NNPC Senior Staff Conditions of Service and cannot be used to calculate the time provisions in other paragraphs. The submission of the Counsel to the Respondent in paragraph 4.6 of his brief of arguments that the provisions of paragraph 15.3 must be interpreted in the light of the contents of the footnote to paragraph 15.6 is without foundation and it is an invitation to the Court to import a fresh term into the contract between parties. I decline the invitation.
The sole question to be resolved in this appeal is – whether, from the terms of the NNPC Senior Staff Conditions of Service, the Respondent is eligible to be paid pension. The operative, and the only, provision relevant to the question is paragraph 15.3. It is after answering this question in the affirmative that the provisions of paragraphs 15.4.3 and 15.6 come into play. If an employee is not eligible to be paid pension, then the issues of the employee forfeiting the pension and/or of the formula to adopt in calculating the pension become superfluous. There is a world of difference between being eligible for pension and calculating the pension of an eligible employee. Paragraph 15.3 was unequivocal in its wordings that an employee becomes eligible for pension only after putting in 10 years in the service of the Appellant. This was confirmed in the schedule in paragraph 15.6 where the starting point for the calculation of percentages due as pension was stated to be 10 years. The Respondent served the Appellant for 9 years, 6 month and 1 day before retiring. The Respondent did not serve the Appellant for 10 years and he, thus, did not qualify to be paid pension. Thus, the issue of calculating his pension in accordance with paragraph 15.6, as requested on the Originating Summons, cannot arise.
Counsel to the Respondent suggested in his brief of arguments that since the Appellant had written letters, such as the letter dated the 26th of February, 1996 and the Memorandum dated the 30th of April, 2004 conveying that the Respondent was entitled to pension, it did not lie in the mouth of the Appellant any longer to say otherwise. This is an assertion of the doctrine of estoppel. The records of appeal reveal that though this point was raised by the Respondent before the lower Court, the lower Court made no reference to it in its judgment and its decision was not predicated on estoppel. It is a settled rule of procedure that where a party desires the appellate Court to affirm the judgment of a lower Court on other grounds other than those relied upon by the lower Court in its judgment, the party must file a Respondent Notice. This is covered by the provisions of Order 9 rule 2 of the Court of Appeal Rules which states that where a respondent agrees with the judgment of the trial court but at the same time wants the judgment to be affirmed on other grounds, he is required to file a respondent’s notice stating the grounds. The Respondent did not file a Respondent Notice and it cannot thus seek to assert the issue of estoppel in this appeal.
Going forward and assuming that the Respondent could raise the issue of estoppel, the specie of estoppel that will come into play is the doctrine of estoppel by representation, also known as estoppel by conduct. This doctrine stipulates that if a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time – Ige Vs Amakiri (1976) 11 SC 1, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt.1118) 204. The principle upon which estoppel by representation is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations – First Bank of Nigeria Plc Vs Sangonuga (2007) 3 NWLR (Pt.1021) 230.
The doctrine of estoppel by representation or by conduct is founded on the principle of fraud and it has five essential elements: (a) that there was a false representation or concealment of material facts; (b) that the representation must have been known to be false by the party making it or the party must have been negligent in not knowing its falsity; (c) that it was believed to be true by the person to whom it was made; (d) that the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent; and (e) that the party asserting the estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds – Oyerogba Vs Olaopa (1998) 13 NWLR (Pt 583) 509, Bank of the North Ltd Vs Yau (2001) 10 NWLR (Pt.721) 408, Chukwuma Vs Ifeloye supra.
Thus, in pleading estoppel by conduct, it is not enough to plead the actual conduct of the defendant which the claimant relies upon as constituting the representations made by the defendant to the claimant. The claimant must go on to plead the acts of detriment he did in reliance on the defendant’s representations. This is what pleading estoppel with particularity connotes – Ibe Vs Auta (1998) 2 NWLR (Pt.538) 497, Baffa Vs Odili (2001) 15 NWLR (Pt.737) 709. The Respondent did not plead or aver estoppel with any particularity in its processes before the lower Court and neither did he say that he did anything or acted in any manner in reliance on the contents of the letters of the Appellant. Additionally, the Appellant’s Memorandum of 30th of April, 2004 was written pursuant to the letter of the Respondent of 13th of February, 2004 wherein the Respondent represented to the Appellant that he put in 10 years in service, and not 9 years 6 months and 1 day. The Appellant stated before the lower Court that its letters saying that the Respondent was entitled to pension were written in error and the Respondent did not contest this fact before the lower Court. In these circumstances, the plea of estoppel by conduct cannot avail the Respondent.
I agree with the arguments of Counsel to the Appellants in this appeal. I find that the appeal has merits and it is hereby allowed. The judgment of the Federal High Court sitting in Kaduna State in Suit No FHC/KD/CS/39/2005 delivered by Honorable Justice A. M. Liman on the 5th of May, 2007 is hereby set aside. The Appellant is awarded the costs of this appeal assessed at N50,000.00. These are my orders in this appeal.
Appearances
C. A. Candide Johnson Esq, SAN, with him E. O. Ekpenyong EsqFor Appellant
AND
Tajudeen Oladajo Esq with him Muntala Abdulrasheed Esq, E. Ulebe Esq, M. T. Rashid Esq, Isayaku Abdularaham Esq and M. B. Yusuf Esq.For Respondent
