NIGERIAN POSTAL SERVICE V. IBRAHIM MUSA
(2013)LCN/6052(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/J/86/2004
RATIO
WORDS AND MEANING: “SUPRA/”INFRA”
“I must state here that the Learned Counsel would appear to have misconstrued what the latin word “supra” connotes. The cases of Amodu vs Amode, Okoefor vs Police Council and Ninji vs FBN referred to as supra were not cited earlier in his brief of argument. He cannot therefore referred to them as ‘supra’. The word “supra” according to the definition in Black’s Law Dictionary Eight Edition means:- “above” earlier in this text used as a citational signal to refer to a previously cited authority” It cannot be equated with the word “Infra” which means:- “Below, later in this text a citational signal to refer to a later-cited authority.” Per IGE, J.C.A
ADDRESS OF COUNSEL: ADDRESSES OF COUNSEL CANNOT TAKE THE PLACE OF EVIDENCE
“Furthermore, addresses of counsel do not and cannot take the place of evidence. A party cannot make out a case solely on the address of counsel, but on facts pleaded and evidence adduced in support of such facts. See Oloruntoba-Oju V Abdul-Raheem (2009) 6 SCNJ 1. Address by counsel does not serve as a substitute for evidence. Submissions therein on facts not pleaded and proved amounts to no issue. Cases are won on credible evidence and not on addresses. See Ogunsanya V State (2011) 6 SCNI 190; Saltzgitter Stahl GMBH V Dosunmu (2010) 20 SCNJ 185.” Per SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
NIGERIAN POSTAL SERVICE Appellant(s)
AND
IBRAHIM MUSA Respondent(s)
PETER OLABISI IGE, J.C.A., (Delivering the Leading Judgment): This is an appeal against the Judgment of Federal High Court Jos Division (Soba-J) delivered on 18th day of September, 2003 against the Appellant, Nigeria Postal Agency.
The Respondent who was the Plaintiff before the trial Court had claimed against the Appellant who was the Defendant in that court the following reliefs:-
“(1) A declaration that the Defendant’s letter entitle “conversion of retirement to dismissal” dated 4th July and 1999 and addressed to the Plaintiff is wrongful, null, void and of no effect whatsoever as it contravenes the civil service rules.
(2) A declaration that the said letter aforementioned is null and void as the Plaintiff was never given a fair hearing before the purported dismissal and is also inconsistent with the Civil Service Rules.
(3) A declaration that the Plaintiff is a retired staff of the defendant by virtue of Defendant’s letter to that effect dated 13th February, 1996 and therefore entitled to be paid his gratuity and pension.
(4) A declaration that the plaintiff is entitled to his unpaid salaries, benefits and allowance during his period of suspension from duty on 13th November, 1987 to the date of his retirement on 13th February,
1996.
(5) Cost of this Action.”
The writ was issued on 16th December, 1999 and statement of claim consisting twenty three (23) paragraph dated 14th December, 1999 was filed. The Defendant was duly served and statement of Defence consisting of two paragraphs was filed.
A brief summary of the Respondent’s case at the Court of trial is this. The Respondent according to him was employed on 1st day of October, 1961 by the Appellant. His appointment was confirmed on 1st October, 1964. He rose through the ranks and became a Chief Supervisor on salary Grade level, 08 Step 5 vide a letter of promotion dated 9th day of September, 1986. The Respondent’s last place of assignment was Jos. The Appellant accused him of embezzlement and placed him on suspension on 13th November, 1987. The Respondent was subsequently arraigned before a Jos High Court on account of the allegation of embezzlement. The Respondent was discharged on 25th November, 1991 by the High Court (Dauda Azaki .J.) for lack of diligent prosecution. He thereafter wrote letter to the Appellant for recall to duty but instead of being recalled to his duty post the Appellant retired him with immediate effect on 13th February, 1996 through a letter dated same date addressed to the Respondent. The Respondent was asked to go to Lagos to collect his entitlement and gratuity. When he got to his employers the Appellant in its Lagos office, he was told a cheque had earlier been written in his name and the officer who was to hand him his cheque told him the cheque had to be withheld. Thereafter he was served a letter dated 4th July, 1999 wherein he was informed that his retirement had been converted to DIMISSAL with retrospective effect from 30th May 1996. He got the letter on 15th day of September, 1999 which culminated into the action now on appeal before this court.
The learned trial Judge in a considered Judgment on 18th day of September, 2003 as aforesaid found in favour of the Respondent on all the reliefs sought by him. The Appellant was aggrieved. On 11th day of November, 2003 a seven grounds Notice of Appeal was filed against the Judgment of the trial court.
Pursuant to the leave of this court obtained on 7th February, 2005, the Appellant filed an Amended Notice of Appeal on 15th February, 2005 which now increased the grounds of Appeal to eight (8). The Appellant brief of Argument was also filed on 18th February 2005 vide the leave of court granted on 7th February, 2005.
It must be placed on record that the original Respondent to this appeal MR. DANIEL K. MUSA died during the pendency of this Appeal and was replaced by his son IBRAHIM MUSA by an order of this court granted in that behalf on 29th day of June, 2011.
Consequently, Appellant’s Amended Brief of Argument was filed on 29th day of September, 2011 while Respondent’s Brief of Argument was filed on 17th day of October, 2011. The Appeal herein was heard on 17th day of January, 2013 when the learned counsel to the Appellant Samuel Yusuf Esq., and the learned counsel to the Respondent
S. Kwasau Esq., adopted their Briefs of Argument in this appeal.
The Appellant raised right (8) issues for determination as set out in paragraph 2.01 of the Appellant’s Brief of Argument filed on 29th day of September, 2011 and they are as follows:-
“(i) Whether in the Circumstances of this case, the failure or refusal of the appellant to testify or call evidence entitled the respondent to automatic Judgment.
(ii) Whether having regard to the state of pleading and the evidence adduced at the trial the respondent proved his claim for declaration against the appellant.
(iii) Whether there was sufficient and satisfactory evidence to support the finding and decision of the learned trial Judge on the respondent’s claim.
(iv) Whether on the state of pleadings and evidence adduced at the trial, the learned trial Judge was right in holding as he did that the respondent was not given an opportunity to be heard by a disciplinary committee instituted under the civil service rules.
(vi) Whether on the facts and the evidence before the learned trial Judge was right to have distinguished the facts of Morohunfola Vs Kwara State College of Technology (1990) NWLR (Pt 145) 506 from the fact of the case.
(vii) Whether on the state of pleadings and evidence on the printed record the learned trial Judge rightly exercised his discretion in granting the declaration that the respondent was entitled to his salaries benefits, allowances from 13/11/1987 to 13/2/1996.
(viii) Whether the learned trial Judge exercised his discretion properly in awarding cost of N50,000 (Fifty thousand Naira) against the appellant in the circumstances of this case.”
In what appears to the a rehash or embellishment of the eight proliferated issues formulated the Appellant the Respondent distilled eight issues for determination namely:-
“(i) Whether the respondent is not entitled to Judgment when he had proved his case in the absence of the appellant calling any evidence.
(ii) Considering the state of pleadings and the evidence adduced by the respondent at the trial, whether the Respondent has not proved his claim for declaration against the defendant (appellant).
(iii) Whether the evidence adduced by the respondent was not sufficient to support the decision of the learned trial Judge.
(iv) Whether the trial Judge was wrong in holding that the respondent was not given fair hearing.
(v) Whether the trial Judge was wrong in taking the judicial notice of a law i.e. the Civil Service Rules made pursuant to Section 160(1) of the 1993 Constitution.
(vi) Whether the learned trial Judge was wrong to have distinguished succinctly the facts in the case of a case MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PART 145) 506 a case of wrongful termination of appointment from the facts of this case which is wrongful conversion of retirement to dismissal. (See page 38 lines 17 – 26 of records).
(vii) Whether the learned trial Judge has not property exercised his discretion in granting the declaration that the Respondent is entitled to his salaries benefits and allowances from 13/11/1987 to 13/02/1996 the date of his retirement see pages 43 lines 13 0 18 of the records)
(viii) Whether the learned trial Judge did not exercise his discretion rightly in awarding a cost of N50,000.00 in favour of the respondent.”
ARGUMENT ON THE ISSUES
The learned Counsel to the Appellant S. E. Yusuf Esq., started by referring this court to what he believes are the undisputed facts on the printed record. He summarized them thus:-
1. That the Appellant is a statutory body.
2. The respondent pleaded and gave evidence that he was appointed a staff of the Appellant on 1st October, 1961 and was confirmed on 1st October, 1964.
3. The letter of appointment and confirmation were neither pleaded nor tendered.
4. The terms and conditions of employment were not pleaded.
5. The Respondent failed to refer to any specific provisions of Civil Service Rules alleged to have been contravened.
6. That there is no evidence on record that the appointment was governed by Civil Service Rules.
7. The Respondent sought declaration of his right to pension and gratuity and unpaid salaries benefits and allowances.
8. The Appellant did not call evidence and did not testify on its own behalf.
9. No document -any evidence in the printed record to show Respondent as being on grade level 08 step 5.
10. The Appellant specifically denied all the paragraphs of the respondent’s statement of claim.
11. That the learned counsel to the Respondent at the trial court asked for N950.00 and N19,000 as cost of the suit but the learned trial Judge awarded N10,000 as out of pocket expenses and in his Judgment he awarded N50,000 costs in favour of the respondent.
In his main argument the Learned Counsel to the Appellant took issues (i), (ii) and (iii) together and tied them to grounds 1, 2 and 8 of the Amended Notice of Appeal. That the issues are concerned with question of onus and standard of proof in declaratory of action.
It is the submission of the Appellant that failure of appellant to prove its case or even her refusal to testify or call evidence did not alleviate the primary burden on the Respondent to prove his case relying on the case of UMEJIAKO VS EZENAMUO (1990) SCNJ 181 AT 189; 1990 NWLR (PART 126) 252. That a trial court must be satisfied in a declaratory action that the plaintiff adduced sufficient evidence to fully entitles him to court’s discretion to be exercised in his favour. He cited the following cases:
1. EGBUNIKE VS MUONWEOKU (1962) 2 SCNLR 79.
2. IBRAHIM VS BARDE (1996) 9 NWLR (PT 474) 573 AT 580
3. ODUOLA VS COKER (1981) 55C 197,
4. OBAWOLE VS WILLIAMS (1996) 10 NWLR (PT 477) 146 AT 170.
5. EKE V. OKOWARANYIA (2001) 12 NWLR (PART 726) 181 AND SECTIONS 136 AND 137 OF THE EVIDENCE ACT CAP. H2 LFN 1990.
The Appellant referred to the evidence given by the Respondent and the fact that the Respondent did not, according to the Appellant learned counsel tendered documents to support his oral evidence as to the date of his appointment and confirmation. That what the appellant did was to rest its case on that of the Respondent. That the learned trial Judge was therefore wrong when he came to the conclusion that the Appellant did not controvert the evidence of the Respondent on that issue. According to the Appellant the failure to tender the letters of appointment and confirmation raised the presumption that if those letter had been produced they would be unfavourable to the Respondent. He submitted that the 1st October, 1961 which the Respondent said he was appointed was a Sunday. He relied on Section 149(c) and (d) of Evidence Act supra and new Lexicon Websters Dictionary of English Language and chapter 15 of Perpetual Calendar Handbook of Practical information by Donald O Ballauder. According to learned Appellant’s counsel Government Ministries do not open on Sunday based on Sundays Observances Act. He also placed reliance on section 74(2) of the Evidence Act supra. To Learned Counsel to the Appellant the uncontroverted evidence before the trial court is insufficient to establish facts of appointment in declaratory action. He referred this court to the cases of
1. MOROHUNFOLA VS. KWARA TECH (SUPRA) AT 519.
2. AMODU VS AMODE SUPRA.
3. OKOEBOR VS POLICE COUNCIL (SUPRA)
4. NINJI VS FBN SUPRA.
I must state here that the Learned Counsel would appear to have misconstrued what the latin word “supra’ connotes. The cases of Amodu vs Amode, Okoefor vs Poli
