THE WEST AFRICAN EXAMINATIONS COUNCIL V. FELIX IWARUE OSHIONEBO (2006)

THE WEST AFRICAN EXAMINATIONS COUNCIL V. FELIX IWARUE OSHIONEBO

(2006)LCN/1921(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of March, 2006

CA/B/61/2003

RATIO

COURT – DUTY OF COURT WHERE PARTY FAILS OR REFUSES TO SUBMIT THE ISSUES RAISED IN HIS PLEADINGS FOR TRIAL

I pause here to say that it is now firmly established that once pleadings have been settled, and issues joined, the duty on the Court is to proceed to the trial of the issues. If one party fails or refuses to submit the issues raised in his pleadings for trial by giving or calling evidence in their support, the trial judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party see (1) THE GOLD COAST AND ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION LTD v. THE ATTORNEY-GENERAL OF THE GOLD COAST (1937) 3 W.A.C.A. 215 and (2) IMANA v. ROBINSON (1979) 3 & 4 S.C. 1. PER ADEREMI, J.C.A.

EVIDENCE: AVERMENT IN THE PLEADINGS

Indeed, refusal to lead evidence in support of an averment in the pleadings or the entire pleadings translates into or voluntary abandonment of such averments or the entire pleadings as the case may be. Again, the law is static that where a witness is not cross-examined on any issue or fact he has given evidence the testimony of such or witness is deemed to have been admitted as true subject to the principle stated in the IMANA case supra. PER ADEREMI, J.C.A.

LABOUR LAW: FUNDAMENTAL PRINCIPLES THAT GOVERNS A MASTER AND SERVANT RELATIONSHIP

Before I go on to consider the arguments by the parties for and against allowing this appeal, I will like to state here the fundamental principles that govern master and servant relationship. It is now beyond any argument, indeed the law is on a firma terra that in a master and servant relationship, which is devoid of statutory flavour, as in the instant case going by the reliefs sought, and which is purely contractual, as in this case, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment. PER ADEREMI, J.C.A.

JUSTICES

PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

Between

THE WEST AFRICAN EXAMINATIONS COUNCIL – Appellant(s)

AND

FELIX IWARUE OSHIONEBO – Respondent(s)

ADEREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Federal High Court sitting in Benin in suit No: FHC/B/CS/57/2/99 delivered on the 14th of June 2002. The plaintiff who won at the court below had by paragraph 35 of his further amended statement of claim filed, by the leave of court claimed against the defendant in that court, the following reliefs: –

“(1) a declaration that the Plaintiff have done 31 years of service in the establishment of the defendant, the defendant can only disengage him (the Plaintiff) by retiring him and not termination.

(2) a declaration that the plaintiff having put in 31 years of service as aforesaid before he was purportedly terminated by the defendant is entitled to gratuity, terminal leave allowance, repatriation allowances and pension as contained and provided for in the defendant’s Conditions of Service and relevant circulars, memos and laws applicable to defendant. The total terminal benefit is N1,120.078.15K.

(3) an order changing the “termination” contained in a letter No. L/P/2518 of 7th July, 1997 to retirement.

(4) an order directing the defendant to pay plaintiff gratuity, pension, terminal leave allowance and repatriation allowance.

(5) an order that the plaintiff is entitled to be paid the unpaid salaries and allowances for the period of his interdiction until he was recalled back to the service.”

Pleadings in terms of further amended statement of claim filed with the leave of court, and consequential amended statement of defence filed on 26/11/2001, were exchanged between the parties. At the hearing of the case in the court below, only the plaintiff (hereinafter referred to as the respondent) testified in proof of the averments in his pleadings. He was not cross-examined and neither did the defendant (hereinafter referred to as the appellant) call oral evidence to substantiate the averments in its consequential amended statement of defence. I pause here to say that it is now firmly established that once pleadings have been settled, and issues joined, the duty on the Court is to proceed to the trial of the issues.

If one party fails or refuses to submit the issues raised in his pleadings for trial by giving or calling evidence in their support, the trial judge must, unless there are other legal reasons dictating to the contrary, resolve the case against the defaulting party see (1) THE GOLD COAST AND ASHANTI ELECTRIC POWER DEVELOPMENT CORPORATION LTD v. THE ATTORNEY-GENERAL OF THE GOLD COAST (1937) 3 W.A.C.A. 215 and (2) IMANA v. ROBINSON (1979) 3 & 4 S.C. 1.

At the end of the trial and sequel to the taking of the addresses of Counsel, the learned trial judge, in a reserved judgment delivered on the 14th of June, 2002, entered judgment in favour of the plaintiff now the respondent in terms of the reliefs sought. In coming to that conclusion the learned trial Judge had reasoned inter alia:-

“It is pertinent to note that in this case though the defendant filed a Statement of defence, they (sic) did not call any witness, nor even cross-examined the only plaintiff witness.

The facts of this case as stated by the plaintiff are not therefore challenged nor contradicted by the defendant at all.

I therefore find that the plaintiff was an employee of the defendant since 28/3/66 when he was employed as a temporary clerk. The plaintiff, from the undisputed evidence before Court was a confirmed officer of the defendant and had so many promotion up to his last post, as the Assistant Chief Examination Officer ……

The recall of the plaintiff was unconditional as it was directed that his monthly salary should be fully reinstated. No mention was made of any act of misconduct against the plaintiff. From the records before this court, which are not challenged, the plaintiff voluntarily resigned from the service of the defendant by a letter dated 8/7/97 …

In exhibit E, the pension/gratuity handbook P. 10 provides that if a person’s appointment is terminated for reasons other than fraud or misconduct, which may amount to criminal offence, he will be entitled to the benefits arising from the defendant’s contributions on his behalf. It is therefore illegal and wrong to so terminate the appointment of the plaintiff without any benefit, since he was not removed for any criminal misconduct ….

It is not in dispute that he is a confirmed staff and his job is pensionable. The plaintiffs have (sic) not reached the retirement age of 60. From exhibit E paragraph 2.09 which is the condition of service, it provided that a person earned (sic) his gratuity with effect from the dated he assume (sic) duty.

Paragraph 10.07 of exhibit E also makes provision for an interdicted officer who has been recalled, to be granted free emolument he would have received had he not been interdicted. It therefore goes without saying that the plaintiff is entitled to the refund or payment of the balance of his salary for the 25 months that he was under interdiction.

The defendant have (sic) no power or at least the defendant did not adduce any evidence nor point of law or rule, that gave them the authority to so terminate, the appointment of a confirmed personable (sic) staff for no offence, without any benefit. In fact until when the plaintiff complained through his counsel, that they replied that he was entitle (sic) to only one-month salary in lieu of notice.

The plaintiff in his evidence in court testified to the balance of the money the defendants were owing him and what he was entitled to as his benefit.

That is his pension and gratuity. There have not been challenged nor contradicted. The witness was not cross-examined on these claims …

In conclusion, I find that the plaintiff has proved his case to the complete satisfaction of the court, against the defendant. I hereby enter judgment in favour of the plaintiff as per paragraph 35 of the Amended Statement of claim dated 17/11/2001.”

Being dissatisfied with the said judgment, the defendant appealed therefrom to this court. With the leave of court it filed an amended process dated 8th April, 2004, and filed the same date, it carries six grounds. Distilled from the said amended grounds of appeal are four issues, which, as set out in the brief of argument of the appellant, are in the following terms: –

“(1) Whether there were more issues arising from the claims of the plaintiff at the lower court than the one issue formulated by the trial judge or whether the learned trial judge was right to have formulated only one issue when it was obvious that there were more than one and whether the non-formulation and consideration of other issues occasioned a miscarriage of justice.

(2)Whether in the circumstances of this case the plaintiff retired voluntarily or was terminated by the defendant and if the plaintiff was terminated whether his termination was lawful.

(3) Whether in the circumstances of this case, the Plaintiff was entitled to judgment as per one statement of claim.

(4) Whether the evidence of the plaintiff at the lower court ought to have been treated as unchallenged and undefended.”

For his part, the respondent also raised four issues for determination and as contained in his brief of argument they are as follows: –

“(1) Whether if a learned trial Judge formulates a lone issue which properly resolves the issue in controversy without occasioning a miscarriage of justice the judgment arrive at can be vitiated.

(2) Whether the learned trial judge was right in holding that the letter of 7/7/97 received on 15/7/97 did not properly terminate, the plaintiff respondent’s appointment as the same was back-dated in view of the circumstances and state of facts given in evidence at the trial on antecedents to the receipt of the letter of termination.

(3) Whether the learned trial Judge was right in treating the evidence before him as uncontradicted, unchallenged and sufficient as to entitle the plaintiff/respondent to judgment on plaintiff’s respective reliefs.

(4) Whether it is correct to say that the judgment is against the weight of evidence having regard to the nature of the evidence before the trial court.”

When this appeal came for argument before us on the 30th of January, 2006, Mr. Olugbami, learned counsel for the appellant, referred to, adopted and relied on his client’s brief of argument deemed to have been properly filed on the 13th December, 2004, he urged that the appeal be allowed by setting the judgment of the lower court aside and remit the case for retrial in the court below before another Judge. Mr. Akhiele, of counsel for the respondent equally adopted and relied on his client’s brief of argument deemed properly filed on 21st September, 2005 and urged that the appeal be dismissed.

I have examined the issues raised by both parties and it seems to me that those identified in the brief of argument of the respondent adequately address the fundamental point arising in this appeal. I shall therefore in this judgment, be guided by those issues.

It must, however, be always remembered the parties are bound by the terms of their contract voluntarily entered into. Once there is a compliance with the terms of the contract of employment, the termination can never be said to be wrongful. However, where there is a written provision for terminating the contract of employment, and there is breach of that written provision what the employee would be entitled to would be the salary for the period of notice to terminate his employment. See W.N.D.C. VS. ABIMBOLA (1966) 4 N.S.C.C. 172; (1966) 1 ALL NLR 159. Therefore, an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employer to prove any such breach – this principle finds support in a long line of judicial authorities the likes of (1) AMODU VS. AMODE (1990) 5 NWLR (PT.150) 356, (2) IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT.357) 379 (3) KATTO VS. C.B.N. (1999) 6 NWLR (PT.607) 390 and (4) IBAMA VS. S.P.D.C. (2005) VOL 132 LRCN 2585; (2005) 17 NWLR (Pt.954) 364.

That the respondent was an employee of the appellant (his employer) and that he rose through the ranks is not in dispute that he was suspended from work and placed on half salary and later recalled after he had been exonerated admits of no argument. In fact he resumed as Assistant Chief Examinations Officer (Accounts) with the defendant. The bone of contention is, whether the plaintiff/respondent’s letter of 8th July, 1997 per which he said he gave the mandatory three months notice of his intention to voluntarily retire from service which he claimed, he served on the appropriate officer of the defendant/appellant and who acknowledge the receipt of the original by orders the respondent’s copy on that day would suffice in putting an end to his employment at against the letter of the defendant/appellant dated 7th July, 1997 ref No.LP/2318 served on the respondent/plaintiff notifying him of the termination of his (respondent/plaintiff) employment with his employer which letter he said was served on him on the 15th of July, 1997. I here pause to discuss the law relating to notice of resignation, the law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. Tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517. The respondent/plaintiff said he voluntarily sent in his letter of retirement dated 8th July, 1997 and the receipt of same was acknowledged by the secretary of the Zonal Co-ordinator by putting on his own copy of the letter staying “received” on the same date. The letter of voluntarily retirement dated 8th July, 1997 and tendered as exhibit “K” reads: –

“The Senior Deputy Registrar (ARG)

West African Examination Council Yaba, Lagos.

Through:

The Deputy Registrar /ZC

West African Examination Council,

Benin City

Dear Madam,

VOLUNTARY RETIREMENT FROM THE SERVICE OF THE COUNCIL

I wish to retire voluntary (sic) from the services of the Council and hereby give the mandatory three months notice. I joined the Council on the 28th March, 1966 as a temporary clerk.

This voluntary retirement from the service has become necessary in view of the recent development in my community. My father died on the 15th of November 1995 and as the most senior son representing my late father in the family quarter, I am now a member representing my family quarter in the Jatto/Uzurri elders Council since the exit of my father, in view of the time requirement/engagement in the village, I have no alternative than to disengage from service.

I hereby thank the council for the opportunity given to me to serve in the council for the past years.

Yours faithfully

(SGD)

F.I. OSHIONEBO.”

This piece of evidence, as I have pointed out supra, was never contradicted or challenged whatsoever; indeed, the respondent/plaintiff was never cross-examined nor was evidence led by the appellant/defendant in proof of the averments in its pleadings. The court below was therefore right in believing the uncontradicted evidence that the respondent/plaintiff voluntarily retired from the service of his employer by his letter, which was tendered as exhibit K.

What now remains is the issue of the entitlement of the respondent/plaintiff. In assessing the respondent/plaintiffs entitlements the learned trial Judge had reasoned:-

“It is therefore illegal and wrong to so terminate the appointment of the plaintiff without any benefit since he was not removed from any criminal conduct. It is also not in dispute that the plaintiff put in 31 years 7 months service with the defendant. It is not in dispute that he is a confirmed staff and his job in pensionable.

The plaintiffs have (sic) not also reached the retirement age of 60. From exhibit E paragraph 2.09 which is the condition of service, it provided that a person earned his gratuity with effect from the date he assume (sic) duty.

Paragraph 10.67 of exhibit E, also makes provision for an interdicted officer, who has been recalled, to be granted free emolument he would have resolved had he not been interdicted. It therefore goes without saying that the plaintiff is entitled to the refund or payment of the balance of his salary for the 25 months that he was under interdiction ….

The plaintiff in his evidence in court testified to the balance of the money the defendant were (sic) owing him, and what he was entitled to as his benefit. That is his pension and gratuity. These have not been challenged nor contradicted. The witness was not cross-examined on these claims. In fact the defendant did not put in any fight in his case. It is just like an undefended case without any contest.

In conclusion, I find that the plaintiff has proved his case to the complete satisfaction of the court against the defendant. I hereby enter judgment in favour of the plaintiff as per paragraph 35 of the amended statement of claim dated 17/11/2001”

The law regulating the relationship between an employer and an employee is very well settled.

First and foremost, no court, generally, can force an employer to retain the services of his employee. See UBN PLC VS. OGBOH (1995) 2 NWLR (Pt.380) 647. Where there is a written contract of employment between a master and a servant, the court is under a duty to determine the rights of the parties under the contract. See UBN Plc supra.

Exhibit E – the written condition of service – is the determinant I have earlier said, that the respondent/plaintiff voluntarily withdraw from the service; so he would not came under paragraph 10 of Exhibit E captioned discipline which stipulated the condition under which an employee could be dismissed or have appointment terminated.

In leg (a) of his claims, the plaintiff sought:-

“a declaration that the plaintiff having done 31 years of service in the establishment of the defendant, the defendant can only disengage him (the plaintiff) by retiring him and not termination. ”

A declaratory action is an invitation to the court to make a pronouncement as to the state of the law with regard to a particular circumstance or situation. Indeed, a declaratory order merely declares the rights of the parties and is dormant beyond that it has no force of execution. To grant the relief sought in leg (a) will not be in consonance with the tenor or exhibit E – the condition service. On leg (b) which sounds as special damages; evidence was led on the items; but since he was not cross-examined for the purpose of demolishing his case and the defendant/appellant not having called evidence in proof of the averments in its pleadings; the proof required from the respondent/plaintiff is one that is minimal in nature; relief (b) is therefore meritorious. The third leg of the claims styled leg (c) is non sequitur having regard to the fact that the appellant/defendant did not lead evidence in proof of the averment of termination. Leg (d) is a duplication of leg (c); the law is not in favour of double compensation.

Therefore, that leg ought not to be granted. From all I have been saying, leg (e) has merit.

In conclusion, the appeal is lacking in merit in substance; however, from the evidence before the court below, the respondent/plaintiff is not entitled to all the reliefs sought in paragraph 35 of his amended pleadings. Judgment is consequently entered in favour of the respondent/plaintiff in the following terms:

“(1) The respondent/plaintiff is entitled to gratuity, terminal leave allowance, repatriation allowances and pension as contained and provided for in the appellant/defendant’s condition of service and relevant circulars, memos and laws applicable to the total terminal benefit being N1,120,078. 15k (One million one hundred and twenty thousand seventy-eight naira fifteen kobo) only.

(2) If the unpaid salaries and allowances for the period of the interdiction of the respondent/plaintiff until he was recalled back to service are not subsumed in (1) supra, then same shall be paid to him by the appellant/defendant.

Leg (a) of claims is hereby dismissed for the reason I have stated supra. Leg (c) is non sequitur and it is equally dismissed while Leg (d) is a duplication of what was claimed in leg (b); for that reason, it is also hereby dismissed.

The respondent is entitled to the cost of this appeal which is assessed at N5,000.00 (Five Thousand Naira) in his favour but against the appellant.

STANLEY SHENKO ALAGOA, J.C.A.: I have had the advantage of reading before now the lead judgment of my brother Pius Olayiwola Aderemi (JCA) just delivered and I agree with the conclusion arrived at. I however wish to make a little contribution of my own. This is a case in which at the court below the present respondent (then plaintiff filed a thirty-five paragraph further amended statement of claim (see pages 4-8 of the records) and gave evidence as PW1 with respect to each and every averment in the said statement of claim (see pages 134 -137 of the records) in the course of which he tendered all the exhibits therein referred to in his pleadings. It will never be known what was operating on the mind of counsel for the present appellant as he did not ask a single question in cross-examination of the then plaintiff. When facts are pleaded and evidence is led on every aspect of the pleaded facts and the facts are not punctured by proper cross examination or as in this case no cross examination at all, the facts are deemed admitted and require no further proof. To make matters worse, the appellant as defendant in the court below, after filing a consequential amended statement of defence in the court below (see page 10 of the records) elected not to call any evidence of his own to substantiate same. Definitely he saw the need to pick holes in the case being presented by the plaintiff when he averred in paragraph 2 of the said statement of defence as follows-

“The defendant denies paragraphs 1, 3, 4, 5, 6, 7, 9, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the amended statement of claim and will at the trial require their strictest proof thereof.”

How else is “their strictest proof’ established than through (1) cross examination of the plaintiff and his witnesses and (2) Leading evidence in rebuttal of plaintiff’s pleadings.

The appellant, then defendant could very well have saved himself the trouble and expenses of filing a defence as in the absence of evidence in substantiation of same, the statement of defence is deemed abandoned. I can only liken what has happened in this case to a football match in which while one side steps into the field of play with full enthusiasm to play its heart out the other side choses to sit and watch the game from the sidelines preferring to pick holes with the referee’s decision to award the match to the enthusiastic side. Justice is like an imaginary scale. All that the Judge does is to put all the facts and evidence on the appropriate scale pans to see on which side the scale pans twist. To do that the Judge must have materials to work with see IMANA V. ROBINSON (1979) 3 & 4 S.C.1.

With the evidence of the respondent as plaintiff having not been contradicted it is now an admitted fact that the respondent voluntarily retired from the services of the appellant by exhibit “K”. So also is admitted the fact that in the process of going on transfer from one station to the other, the respondent misplaced his letter of employment which eventually led to the swearing of the affidavit – exhibit “A”. Also admitted is the evidence of the respondent that he was fully returned to full service and full pay after his period of interdiction etc. To get to know the extent of the admitted facts one has to look at the entire further amended statement of claim dated 14th November 2001 (pages 4-8 of the records). Where there is a written contract of employment governing the relationship between master and servant, the court is enjoined only to interpret the terms of that contract freely and voluntarily entered into between the parties.

Looking at the four issues formulated by the appellant for the determination of this court none deserves to be determined in the appellant’s favour. Looking at the further amended statement of claim reveals that the respondent never asked for reinstatement having retired voluntarily. This is just as well because it is the law that the court will not force an employer to retain the services of an employee. See UBN V. OGBOH (1995) 2 NWLR (Pt. 380) page 647. It is for these and the other reasons contained in the leading judgment that I also conclude that the appeal lacks merit.

I abide by the order contained in the lead judgment including order on costs.

GEORGE OLADEINDE SHOREMI, J.C.A.: This is an appeal against the judgment of the Federal High Court, Benin delivered on the 14th of June, 2002. The plaintiff who succeeded below at the Federal High Court on his further amended statement of claim filed by the leave of court claimed against the defendant in that court as follows:

(1) a declaration that the plaintiff have done 31 years of service in the establishment of the defendant, the defendant can only disengage him the plaintiff by retiring him not termination.

(2) a declaration that the plaintiff having put in 31 years of service as aforesaid before he was purportedly terminated by the defendant is entitled to gratuity, terminal leave allowance, repatriation allowances and by relevant circulars, memos and laws applicable to defendant. The total terminal benefit is N1,120,078.15k.

(3) An order changing the “termination” contained in a letter BoL/P/2518 of 7th July, 1997 to ‘retirement’.

4) An order directing the defendant to pay plaintiff gratuity, pension, terminal leave allowance and repatriation allowance.

(5) An order that the plaintiff is entitled to be paid the unpaid allowances during the period of his interdiction until he was recalled back to service.

Pleadings in terms of the further amended statement of claim filed with the leave of court and consequential amended statement of defence filed on 26/11/2001 were exchanged between parties.

At the hearing in the court below the plaintiff who is the respondent in this court testified in proof of the averment in his pleadings. The appellant who was the defendant in the court below was represented by counsel throughout the trial. He did not cross examine the respondent nor call any oral evidence to substantiate the averments in its consequential a mended prima facie case has not been proved by he plaintiff, but that position is valid only if a prima facie case has not been established by the party in whose favour judgment will be given if he fails to adduce evidence. In this case, the respondent (as plaintiff) did establish a statement of defence. It should also be noted that no document was tendered by the appellant nor any of the tendered exhibits objected to. Rightly, the court proceeded to try the issues and found find for the respondent.

I have read in draft the lead judgment just delivered by my Lord .ADEREMI, J.C.A and I agree with the reasoning and conclusion therein.

The appellant by his counsel argued that the trial Judge was wrong in his approach since it is trite law that the case of a plaintiff stands or falls upon his own evidence and not upon the weakness of the defence and he who asserts must prove. Citing the case of CHIME V. CHIME (1995) 6 NWLR (Pt. 404) 734 at 756. The learned counsel is correct but here the trial Judge found for the respondent on the strength of his case and not just because the case of the appellant is weak.

In ARABAMBI v. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) Page 1. The Supreme Court held that

“Pleading is not synonymous with evidence and so cannot be considered as such in the determination of the merit or otherwise of a case. Thus, a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading, and where there is none, then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him.”

In the same judgment, the Supreme Court considering S.137 of the Evidence Act held as follows:

“Under section 137 of the Evidence Act, a defendant is not bound by law to call a witness/witnesses to establish his defence where a prima facie case has not been established by the party in whose favour judgment will be given if he fails to adduce evidence. In this case, the respondent (as plaintiff) did establish a prima facie case.”

The counsel to the appellant in the lower court did not discharge his duties as it is the duty of every counsel to assist the court in arriving at a just conclusion. In this case the notice of his stand is only known to him.

To allow this appeal in its entirety is to allow the appellant to have another chance of doing what he ought to have done. This will be unjust. In the circumstances and for reasons given and adequately considered in the leading judgment by ADEREMI, J.C.A. I agree with the judgment and all the declarations made including costs.

Appeal dismissed.

Appearances

Mr. S.A. Olugbemi Esq. (with him, Mr. A. O. ManyeFor Appellant

AND

S. E. AkhieleFor Respondent